The Consumer as Defendant — the Protective Framework
When a trader brings a debt-collection claim against a consumer, the Law on Consumer Protection provides special instruments of defence. The core of these instruments is the voidness of unfair standard terms: an unfair standard term is void, notwithstanding its presence in the contract, where it contradicts the principles of trust and good faith and causes an unjustified imbalance of the rights and obligations provided by the contract to the consumer's detriment, including through its ambiguity. In the assessment, the subject matter of the contract, the circumstances existing at its conclusion and the other terms are taken into account — but not the essence of the main subject matter or the adequacy of the price.
Which Terms Are Void
The law directly names the unfair terms that are void. Among them: excluding or limiting the trader's liability for the consumer's death, injury to health or other damage caused by the trader's act or omission; unfairly restricting the consumer's right to bring a claim; obliging the consumer to perform where the trader's performance depends only on its own will; the right to retain sums paid; an obligation to pay more than the damage; unilateral withdrawal from the contract; automatic prolongation; vague determination of terms; binding the consumer by terms it had no real possibility of becoming acquainted with before conclusion; unilateral amendments and determination of the price at the moment of supply; and the unilateral interpretation of whether the goods conform. This list is the object of the first check against a creditor's claim. It also matters that voidness does not depend on the term's "presence": an unfair term is void notwithstanding that it figures in the contract and the consumer signed it — a signature cannot preclude voidness. Defence therefore begins with comparing every term of the contract against this list, not with whether the consumer agreed to the term at the time of conclusion.
The law also sets a precise algorithm for assessing unfairness: in assessing a standard term, account is taken of the subject matter of the contract, the circumstances at its conclusion that led to the inclusion of the term, and the other terms; neither the essence of the main subject matter nor the adequacy of the price in relation to the goods or services is considered. The rule of partial invalidity matters as well: the invalidity of an unfair term does not invalidate the other parts, if the term is not essential and the contract can be presumed concluded without it — the dispute often revolves around individual provisions.
Exceptions
Certain exceptions exist: in a contract for financial services of indefinite duration, a specified term is not void where a substantial ground for withdrawal exists and the trader immediately notifies the consumer; likewise for a term on changing the interest rate or commission on a substantial ground. In addition, specified terms are not void in transactions involving transferable securities and financial instruments, in deals whose price is tied to stock-exchange quotations or indices or to a market rate the trader cannot control, and in foreign-currency purchase-and-sale contracts.
The regime of exceptions extends to financial services too: where a valid reason exists, the trader may change the interest rate or commission without prior notice, provided the consumer is notified at the first opportunity; the consumer may then refuse the contract immediately. Nor are individual provisions void where the price is tied to stock-exchange quotations or indices, in foreign-currency deals or international money transfers — before testing a term, one must establish whether it falls within the list of exceptions.
Unfair Commercial Practices and the Right to Complain
Unfair commercial practice is prohibited: unfair is a practice that contradicts the requirements of good faith and materially alters, or may alter, the economic behaviour of the average consumer; misleading and aggressive practices are deemed unfair. The consumer also has the right to apply to the Competition and Consumer Protection Agency or the sector regulator about a breach of the law — and that right does not deprive the consumer of the right to apply to a court or arbitration or to resolve the dispute through mediation. In the claim, this means that an agency decision and court protection do not exclude each other.
The protection of vulnerable groups is regulated separately: where a commercial practice may materially distort the economic behaviour only of a group of consumers particularly vulnerable by reason of mental or physical capacity and/or age, the economic behaviour of the average member of that group is taken into account. At the same time, exaggerated information in advertising that is not meant to be taken literally is not considered unfair — the boundary between exaggeration and misleading is established case by case.
Frequently Asked Questions
Below we answer the questions most frequently asked on this topic.
Which terms are most often void?
Exclusion of liability, restriction of claims, unilateral amendments, automatic prolongation and vague terms — the law names all of them directly.
Is court excluded by applying to the agency?
No — a complaint to the agency does not deprive the consumer of the right to court, arbitration or mediation.
What is an unfair commercial practice?
A practice contradicting good faith and altering the consumer's economic behaviour — misleading or aggressive.
Are there exceptions?
Yes — in financial services and transactions tied to exchange quotations, in the cases established by law.
How We Help on Legal.ge
In a consumer debt case, the consumer's position often depends precisely on the analysis of the contract's terms. On Legal.ge you can consult an advocate experienced in consumer protection who will examine the contract for void terms, assess the prospects of defence and represent you in court. Submit a request on the site and get qualified assistance.