New events[1] of abusive clauses in consumer contracts

18 October 2021 |

Section 37 of Act 24,240, of Consumer Defense, contained in its Chapter IX, ”Abusive terms and ineffective clauses”, sets forth, as regards what concerns us here, that, notwithstanding the validity of the contract, the following shall be considered not agreed upon:

“a) Clauses that denaturalize obligations or limit liability for damages;

b) Clauses that imply waiver or restriction of the consumer’s rights or extend the rights of the other party…”

And section 38, also as regards what concerns us here, provides that:

“The enforcement authority will supervise that adhesion contracts or the like, do not contain the clauses provided for in the preceding section. Said power shall be exercised with respect to uniform, general or standard clauses of contracts prepared in forms, reproduced in series and in general, when said clauses had been unilaterally written by the supplier of the thing or service, and the other party would not have the chance to discuss its content.”

In April 2003, the then Secretariat of Competition, Deregulation and Consumer Defense (Secretaría de la Competencia, la Desregulación y la Defensa del Consumidor), set forth through the issuance of Resolution 53/2021 – arguing that it did so in accordance with the provisions of sections 37 and 38, mentioned before – that the consumer contracts could not contain said clauses “of which, for information purposes” were included in the list which was added to said resolution as an annex.

The original list of Resolution 53/2003 was adjusted very quickly by Resolution 26/2003 of the then Secretariat of Technical Coordination (Secretaría de Coordinación Técnica), published in the Official Gazette on August 14, 2003 and remained unchanged for something more than 18 years.

The Annex set forth that the following were considered abusive clauses:

→ When they confer upon supplier the exclusive right to interpret the meaning, extent and performance of contractual clauses and of the respective obligations.

→ When they grant to supplier the power to unilaterally modify the contract, except in those cases in which the enforcement authority issues a decision pursuant to objective guidelines and criteria.

→ When they authorize supplier to terminate the contract without fair cause, without the consumer’s nonperformance. However, the contracts for uncertain term may be terminated without fair cause when they provide for the notice to consumer, with reasonable anticipation according to the nature and features of the purpose of the contract (The enforcement authority may provide for additional requirements for special cases).

→ When they subordinate the effectiveness of the contract to a unilateral act of acceptance by supplier, while the consumer’s will has been irrevocably expressed before, unless it is authorized by special legal regulations.

→ When they impose upon consumer any limitation in the exercise of legal actions or other remedies or if they condition in any manner whatsoever the exercise of the consumer’s rights. Especially when:

i. When it is decided that the legal actions may be filed in a jurisdiction other than the place where the consumer’s domicile is located at the time of execution of the contract, unless it is decided that the action will be filed where the consumer’s domicile of choice is located at the time of its filing.

ii. When evidence is limited, or the burden of the proof is imposed upon consumer, unless otherwise is authorized by special legal regulations.

iii. When the power to file pleas, challenges or other remedies is limited.

→ When they provide that if consumer is in default, with respect to obligations set forth in the contract, supplier may pay same by offsetting it with other amounts furnished by consumer to supplier as a consequence of another contract or of the provision of another product or service, except the offset is authorized by special legal regulations, in which case the supplier should inform it to consumer in the contract.

→ When they exclude or limit the supplier’s liability, for the damages caused to consumer for the acquired product or rendered service and/or with respect to any legally enforceable compensation or reimbursement.

→ When they condition the exercise of the contractual termination power by consumer to the previous payment of the sums owed to supplier.

→ When they empower supplier to supply other products or services not included in the contract, without the previous and express acceptance by consumer and/or imposing upon consumer a term to inform that he/she does not accept said products.

→ When they impose upon consumer a representative or attorney in fact to substitute it in the exercise of the rights arising from the contract, the accessory commitments to the contract, or from other legal businesses.

→ When they infringe environmental protection regulations or when they allow their infringement.

Aside from certain objections that may be made to some of these limitations to contractual freedom, in my opinion most events included in the annex of Resolution 53 – modified by Resolution 26/2003 – were reasonable and, especially, in accordance with the provisions of higher constitutional rank regulations in which they intended to set the grounds (subsections a. and b. of section 37 of Act 24,240).

At the end of her term of office, the brand-new former secretary of Domestic Trade, Lic. Paula Español, issued Resolution SCI 994/2021, on September 29, 2021 (published in the Official Gazette on 10/1/21), which more than doubled the list of abusive clauses.

Presumably, under the provisions of section 37 of Act 24,240, even though – to say the least – it is not so clear.

By operation of said Resolution 994, the clauses of consumer contracts, adhesion contracts or the like must be considered abusive now, in addition to the previous ones, as well as uniform, general or standardized clauses of contracts prepared in forms, reproduced in series and in general, when said clauses of the consumer contracts had been unilaterally written by the supplier of the thing or service, and the other party would not have the chance to discuss its content, that:

→ Infringe or allow the violation of the rights of children and teenagers.

→ Directly or indirectly promote or encourage stereotypes, socio-cultural patterns sustained in the gender inequality and the power relationships over women.

→ Distinguish, exclude, restrict or arbitrarily impair consumers for reasons of race, ethnicity, gender, sexual orientation, gender identity, age, religion, physical, psychophysical or socio-economic condition, nationality, or any other one that violates the principle of respect of human person’s dignity.

→ Denaturalize the effects of down payment or deposit in detriment of consumer.

→ Set forth arbitration clauses or agreements.

→ Obstruct, denaturalize or limit the revocation of the acceptance by consumers in consumption relationships performed out of the commercial establishments, remotely or through electronic means.

→ Allow suppliers to maintain the data of consumers after the termination of the contract, when consumer has requested their elimination.

→ Impose a prohibition or penalty for negative reviews.

→Set forth anatocism or interest of interest in consumption relationships, in detriment of consumers.

→ Transfer to consumers the consequences of Act of God or force majeure.

→ Prevent or restrict consumers from the chance to claim the theory of unforeseen contingencies or the frustration of the purpose of the contract

→ Suppress or reduce the extents of the supplier’s liability for sanitation.

→ Allows supplier to delegate the performance of its obligation to a third party, when said third party was elected for its personal qualities.

→ Limit the exercise of consumers’ right through class actions.

The foregoing list contains, in my opinion, provisions that in some cases are overabundant (as, for example, the one that declares abusive the clauses that infringe or make possible the violation of the rights of children and teenagers, already forbidden in Argentina, for well over a decade, by different legal regulations ranking higher than the one issued at present), in other cases fanciful (like the one that assumes that a contract shall contain regulations that promote or encourage – directly or indirectly – stereotypes, socio-cultural patterns sustained in the gender inequality and the power relationships over women) and – what is truly worrisome – some unconstitutional, like those that forbid anatocism, already regulated by section 737 of the Civil and Commercial Code of the Nation, that – again – as regards what concerns us here, sets forth the following:

“SECTION 770.- Anatocism. No interest from interest is due, unless:

a) an express clause authorizes the accrual of interest to the principal with a periodicity of not less than six months…”

If the Civil and Commercial Code of the Nation allows the accrual of interest on interest, without distinguishing the contract in question, prior to its capitalization every six (6) months, it seems clear that a regulation of – very – low rank, like the resolution of a secretary of Trade, cannot forbid it.

This was taught in the Argentine public schools, like the one I attended, in the subject then called “Education for Democracy”, which made-up the study program of – I believe – third year of high school.

I mean, in case it had not been clear, that any person, minimally educated, knows it – or at least, must know it.

Not even the President of the Nation, no matter how presidential our constitutional regime may be considered, could “regulate” the imposition of interest on interest as Resolution 994 does it.

Even less – if possible –a fourth-category officer like the secretary of Trade could do it, who has a lower rank, within public administration, than the President of the Nation, than the Chief of the Cabinet of Ministers and than its direct chief, at present, the Minister of Production.

Certainly, Resolution 994 deserves further critical analysis than the one developed above. Also, undoubtedly, it would have deserved it from its writers, maybe influenced by electoral needs, that are not those of the rest of citizens, neither in the short nor in the medium term, not even in the long term.

Buenos Aires, October 18, 2021.

[1] Event: “1. adj. Considered actual or true without the security of whatever it is.” (Dictionary of the Spanish Language, Spanish Royal Academy, On line Edition).


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