Unfair commercial practices, abusive clauses, consumption and mediation (Part 1)

Article 8 of Royal Legislative Decree 1/2007, of November 16, which approves the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws –TRLGDCU- indicates the two problems that the consumer faces and that require special attention on the part of the public powers, which are the unfair business practices and the unfair terms.

What are unfair business practices?

Unfair commercial practices are those acts, omissions, conduct, statements or commercial communications, including advertising and marketing, directly related to the promotion, sale or supply of goods or services, including real estate, as well as the rights and obligations, regardless of whether they are carried out before, during or after a commercial operation.

Establishes article 4.1 of the LCD defines “any behavior that is objectively contrary to the requirements of good faith"and extrapolating to relationships with consumers and users we have to understand as contrary to the requirements of good faith"the behavior of a businessman or professional contrary to professional diligence, understood as the level of competence and special care that can be expected of a businessman in accordance with honest market practices, which distorts or may significantly distort the economic behavior of the consumer average or the average member of the target group of the practice, if it is a commercial practice directed at a specific group of consumers”.

This is why unfair commercial practices with consumers obviously do or can influence their decision, distorting it, diminishing the ability to opt for a decision with full knowledge of the facts, altering economic behavior that would not otherwise exist. would have taken in relation to a series of options such as:

– The choice of an offer or offeror.

– The contracting of a good or service, as well as how we contract and under what particular conditions it is done.

– Payment of the price, total, partial or fractional, or any other form of payment.

– The conservation of the good or service at the consumer's choice.

– The exercise of contractual rights that apply in relation to goods and services.

What should we focus our attention on?

It is key to note that the influence must be significant and that it does not refer to the usual and legal advertising practice of making exaggerated statements or for which a literal interpretation is not intended and that to evaluate its intensity, It is key to take into account the personal characteristics of the consumer to whom the commercial practice is directed., especially if they are consumers who are vulnerable with respect to these specific consumer relationships, since they cause them to see themselves in a special situation of subordination, defenselessness or lack of protection that prevents them from exercising their rights as consumers in conditions of equality, as established in article 3.2 of the TRLGDCU.

In the face of unfair commercial practices, article 20 bis of the TRLGDCU establishes corrective measures available to injured consumers and users, referring to article 32.1, 1st to 4th of the LCD, considering that the use of unfair commercial practices against consumers is proven, unless proven otherwise. users that has been confirmed in a final resolution of a competent authority or a jurisdictional body.

The problem is that in the judicial or administrative procedure, you must always file a claim or complaint and wait for the final resolution, but in a mediation, it can never be proven that an unfair practice has existed.

In the consumer mediation system, being the most used to process claims, there is almost never a real view of the large number of unfair commercial practices that are occurring in the market and that would be detected in the sanctioning procedure. The reference obtained in arbitration by the person signing this article serves as an example of the weakness of the consumer party in certain commercial relationships;

Continue training in the world of mediation thanks to masters like this. Don't run out of places.

1 thought on “Prácticas comerciales desleales, cláusulas abusivas, consumo y mediación (Parte 1)”

  1. Good article. It is true that conflict resolution procedures are developed in Consumer Affairs, but in most public and private organizations dedicated to this function, these procedures do not comply with the requirements of Law 5/12, unfortunately. Nor is it contemplated within the sanctioning procedure that in the event of an infraction the offender can reach an agreement of satisfaction with the injured party and reduce or avoid the amount of the sanction.
    On the other hand, and in my opinion there is still a long way to go regarding consumer maturity. Today we find a consumer who knows that he has rights but very often does not take precautions for self-protection such as reading contracts or seeking advice, requesting quotes, proof of payment, and a long etc.
    In short, as you point out, in consumer relations there is an enormous field for mediation, this procedure serving not only to seek an improvement in the understanding of the parties and to try to reach a consensual solution but also during the process the consumer You will acquire skills that will improve your future behavior as a consumer. I wish there was a firm commitment on the part of the administrations for the development of mediation in all areas and particularly in the consumer sector. a cordial greeting


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