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Legal Report No. 01 - 2023
The integral control of vexatious
clauses in the Peruvian Civil Code
Informe Legal No 01 - 2023
El control integral de las cláusulas
vejatorias en el Código Civil peruano
Juan Abelardo Villanueva Alarcón
Independent legal researcher
City:
Lima
Country:
Peru
Original Article (Report)
RFJ, No 13, 2033, pp. 290 - 304, ISSN 2588-0837
TO:
Editorial Board
ABOUT:
The need to establish a modern and updated regulation
of
integral control of vexatious clauses in the
Peruvian Civil Code.
DATE:
June 14th, 2020
ABSTRACT:
The purpose of
this report is to make a critical
analysis of the normative areas that regulate the control
of vexatious clauses that may be inserted in standardized
contractual mechanisms, that is, to see whether or not it
is necessary to maintain the legal framework of how this
problem is being regulated, to conclude whether or not there
is adequate comprehensive control of any clause that may
generate a situation of imbalance in the contracting parties in
this contractual mechanism.
DOI 10.26807/rfj.vi.460
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KEYWORDS:
Regulation, Civil Code, Integral Control,
Vexatious Clauses.
RESUMEN:
Este informe tiene por objeto hacer un análisis
crítico de los ámbitos normativos que vienen regulando el
control de cláusulas vejatorias que pueden ser insertas en los
mecanismos contractuales estandarizados, es decir, ver si a la
fecha es necesario mantener o no el marco legal de cómo se
viene regulando esta problemática, para concluir si existe o no
un adecuado control integral de cualquier clausulado que pueda
generar una situación de desequilibrio en las partes contratantes
en este mecanismo contractual.
PALABRAS CLAVE:
Regulación, Código Civil, Control Integral,
Cláusulas Vejatorias.
JEL CODE:
K41.
1. BACKGROUND
At present, in our society, the consumerism of goods
and services has been consolidated, since the great production
erected since the industrial revolution, today, together with the
expansion and opening of markets, together with globalization
and the technological era, makes commercial transactions are
increasingly numerous, dynamic, and even competitive, and
therefore the use of contractual mechanisms that facilitate the
procurement of goods or services has increased. It is then that
the law, not being able to be alien to this phenomenon, must
be in perennial linkage and observance with these vicissitudes
that arise in our society and provide answers or solutions to the
problems that arise in its development.
Article 18, paragraph d) established that a list of clauses
inserted in general contracting clauses and adhesion contracts
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that generate the improvement of the contractual situation of
the person who drafts them at the expense of the consumers
will be considered as not put in place. However, this law was
repealed in 2010 by the Code of Consumer Protection and
Defense (Law No. 29571) which establishes a more detailed
regulation of these contractual mechanisms, under the figure
of the consumer contract, in which a supplier and a consumer
participate, under the concepts established in said Code,
and even and unlike the civil code, it has more updated and
effective control mechanisms, such as the general control of
vexatiousness of a clause and a system of lists of vexatious and
presumably vexatious clauses.
From the foregoing, it must be stated that to date the Civil
Code maintains its article 1398 in force without any substantial
modification, maintaining some cases of vexatious clauses that
will not be valid, but it lacks comprehensive control in those
cases outside the list provided in said norm and even that cannot
be extended through interpretation or analogical application,
lacking a framework of substantive and general control over the
vexatiousness of any clause predisposed and that generates a
detrimental situation to the adherents. Likewise, and although
the Code of Consumer Protection and Defense contains a legal
framework of control superior and improved to that of its civil
counterpart, it must be kept in mind that its framework of
protection is restrictive since it is intended to protect against
those vexatious clauses that have been inserted in consumer
contracts, that is, those entered into between a supplier and a
consumer, being outside its scope all problems generated by the
insertion of vexatious clauses in these contractual mechanisms
entered into between businessmen and persons who are not
considered consumers (final consumers).
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In the case of vexatious clauses inserted in unilaterally
stipulated contracts, the civil code does not have mechanisms
of control of substance and general form to detect this type of
clauses, and to date has only established a reduced group of
clauses that it considers invalid in case they are inserted in a
mass contract; and although the Code of Consumer Protection
and Defense has a more detailed and updated regulation, it only
regulates consumer contracts, where a supplier and a consumer
must necessarily participate, leaving defenseless the entire mass
of adherents who make use of this contractual mechanism, in
which even companies or businessmen may be involved, since
this contractual phenomenon is not designed for the exclusive
use of certain subjects, but to dynamize massive transactions
in a competitive market, and therefore for all subjects of law,
which makes it necessary to establish mechanisms of general
protection for all those who make use of these contractual
mechanisms and do not remain in a state of defenselessness due
to lack of legal mechanisms that adequately regulate their use.
2. CONSIDERATIONS OF THE PERUVIAN LEGAL SYSTEM
The Peruvian legal system has two normative bodies
that regulate the phenomenon of mass contracting, and
therefore the control of vexatious clauses, the first one is found
in the Civil Code (1984), since articles 1390 to 1401, regulate
the use of general contracting clauses and contracts of adhesion,
and within these is the control of abusive clauses inserted in
these contractual mechanisms, whose article 1398 stipulates as:
Invalid those general contracting clauses (not
administratively approved) and those inserted in
adhesion contracts that establish in favor of those
who have drafted their exonerations or limitations
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of liability; powers to suspend the execution of the
contract, to rescind or terminate it, and to prohibit
the other party the right to raise defenses or to tacitly
extend or renew the contract.
As can be seen, although said regulation establishes a
list of clauses that are considered vexatious, it has not taken
into account that the universe of clauses that can generate
a contractual imbalance is much greater than that foreseen,
and even due to the variety of operations in which its use is
immersed, it has given rise to problems regarding its scope of
application, either through extensive interpretation or analogy,
which is why it is not an adequate means of control for these
contractual mechanisms, In addition to being of such massive
and varied use, it is complicated to apply to other assumptions,
since this contractual mechanism is so expanded in its use that
it exceeds even the private sphere, since it can be observed in
commercial relations that are also regulated by Maritime Law,
Aeronautical Law, and even within Public Law, which has
generated difficulties and made it impossible for the operators
of the Law not to make an adequate application of control due
to the shortcomings contained in said norm of the Civil Code.
In addition, there is a lack of contractual institutes and
remedies provided by the civil code that is compatible with
such contractual practice, since those existing in the referred
code are to be applied to contracts entered into consensually
by both parties and perfected by mutual agreement, since they
are contracts where erected on a unilateral predisposition
and perfected using assent (adhesion), it is incompatible or
inapplicable to apply certain contractual remedies provided in
the same code for this type of contracts, since such remedies
have been designed for parity contracts. Therefore, the civil
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code has a narrow control framework and does not have
a general and adequate control mechanism to mitigate the
insertion of any vexatious clause that may be inserted in these
contractual mechanisms.
The second body of law that regulates the use of these
contractual mechanisms is the Consumer Protection and
Defense Code (Law No. 29571), which, taking as a reference
the vexatiousness control model of the German system, has
regulated the control of vexatious clauses by introducing a
control of content together with a system of lists, but a problem
arises with respect to its suitability as a control framework
and also on its application, firstly, because this control system
has been established without taking into account that it was
foreseen in Germany for its judicial system, not to be applied in
administrative courts (as has been done in our country), since
the substantive control and its declaration of invalidity (of a
vexatious clause) only corresponds to its determination and
declaration in the jurisdictional sphere, It should be added that
this Code of Consumer Protection and Defense has a narrow
scope of application, since it has been foreseen to be applied
only to consumer contracts, that is to say, only to that contract
where a supplier and a consumer participate, and the latter has
been defined in the same code as that natural or legal person
who acquires, uses or enjoys as final recipients goods or services,
and as has been previously stated, the use of these contractual
mechanisms exceeds those made only by consumers, since
there are many natural persons, such as businessmen; and
legal persons, such as public and private, who acquire goods
and services, even natural persons subscribe them not as final
consumers, and are exposed to violations in their legal situation
with the insertion of vexatious clauses, but as they are not
final consumers, they will not be protected within the scope
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of protection of said Code, and will have to resort to the Civil
Code, which contains the deficiencies described. The same can
be said concerning Law No. 28578, called “Complementary
Law to the Consumer Protection Law on Financial Services”,
which regulates the control of vexatious clauses, but is intended
to regulate and protect the contractual phenomena arising from
the services provided by financial entities, and is focused on
the development of such activities. In other words, its scope
of application is more restrictive than that of the Consumer
Protection and Defense Code since it only applies to consumer
contracts between a supplier of financial services and a final
consumer.
Given the above, the problem can be summarized as follows:
A)
The civil code has a regulatory deficiency on mass
contracting, specifically concerning the control of
vexatious clauses, which does not allow to alleviate all
the problems and abuses that can be generated with the
use of these contractual mechanisms, to all the legal
subjects that are immersed in this form of contracting.
B)
There is restrictive protection by the Code of Consumer
Protection and Defense, since it does not perform a
substantive control regarding the vexatiousness of a
clause, and both said code and the Complementary Law
to the Consumer Protection Law on Financial Services
(Law No. 28578), are intended to regulate consumer
relations.
The legislative deficiency pointed out by the
Civil Code has caused a complete lack of general and effective
protection to all the legal subjects that are immersed in this
contractual practice, together with the incompatibility of
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control that exists concerning recourse and control with other
institutes and contractual remedies provided for in said code,
since these have been provided for parity contracts; on the
other hand, the restrictive protection given only to consumers
by the Code of Consumer Protection and Defense leads to
evidence that in our Peruvian system there is no adequate
and full protection concerning all the adherents in general,
who establish contractual relations based on this form of
contracting, and this is mainly because our civil code to date
does not adequately regulate the pathological aspects of this
form of contract, and it is the regulatory framework that has to
carry out the adequate and full control of these.
From the above, the objective of the report seeks
to answer the following questions: Is it necessary to establish a
modern and updated regulation of integral control of vexatious
clauses in the Peruvian Civil Code? Is the regulation of control
of vexatious clauses in the Code of Consumer Protection and
Defense satisfactory or sufficient to protect all contracting
parties from abusive clauses?
3. REGULATORY MODEL OF VEXATIOUS CLAUSES:
FURTHER CONSIDERATIONS
In the Peruvian Legal System, two bodies of law have
regulated the problem of vexatious clauses in contracts of
adhesion and general contracting clauses: i) The Civil Code;
and ii) The Code of Defense and Consumer Protection (within
it we include the Complementary Law to the Consumer
Protection Law on Financial Services. Law No. 28578). The
aforementioned codes have as a ratio the protection of the
adherents in this form of contracting, but the civil code has
established in its article 1398 the control for a group of clauses
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that considers them vexatious and therefore sanctions them
with their invalidity, not providing greater control mechanisms
to the other assumptions that also generate a contractual
imbalance and a detrimental situation for the adherent, which
would result in a lack of full control of vexatiousness for the use
of this contractual mechanism.
Although the Code of Consumer Protection and Defense
has established a legal framework of control more updated to its
civil counterpart, it does not perform control of substances for
not being able to establish and declare the invalidity of these
and is intended to protect certain persons (consumers) who
have signed a consumer contract, which is only a part of the
diversity of contracts that are perfected through this contractual
mechanism, so its framework of application is restrictive.
This situation has led to the fact that many sectors
and agents that interact and develop in the Peruvian market,
and acquire goods or services through these forms of mass
contracting, cannot be fully protected by the rules that regulate
this contractual phenomenon, either by the insertion of
vexatious contractual content that is not provided for in Article
1398 of the Civil Code, or by the activity they perform, by the
nature of the transaction carried out or even depending on
the situation or contractual position in which the contracting
parties find themselves.
This leads to a lack of effective protection of the rights
of those subjects that are within this form of contracting and
do not comply with the requirements provided by one of these
laws, therefore there is a lack of control and full protection
regarding the entire universe of vexatious clauses that can be
inserted in this form of contracting, and for all subjects that
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make use of it, being necessary to establish a framework of full
control within our Peruvian legal system.
Because of this situation, the civil code needs to
have a medium-sized good or service adhesion. To this end,
it is important to modify article 1398 of the civil code and
to update and establish mechanisms of substantive control
on vexatiousness and protection of the adherent contracting
party, providing contractual remedies that seek contractual
rebalancing, since they are by and necessary for this type of
contracting.
4. PROPOSAL: CHANGES IN THE SYSTEM
We propose a critical analysis of the normative areas
that regulate the control of vexatious clauses that may be
inserted in standardized contractual mechanisms, i.e., to see
whether it is necessary to maintain the legal framework of
how this problem is being regulated, to conclude whether
there is adequate comprehensive control of any clause that
may generate a situation of imbalance in the contracting
parties in this contractual mechanism. For this purpose, it is
essential to make a normative analysis of how this contractual
phenomenon is regulated to date, to be able to highlight
whether there are deficiencies and problems, since from the
above it is evident that there is a lack of an adequate regulation
to control the pathological situations that may occur in this
type of contracting, since the civil code does not provide a
general and comprehensive control of any vexatious clause,
nor does it provide a protection or protection framework for
the non-stipulating party or adherent to these contracts, which
can lead to abuses by the stipulating party in case he does not
make correct and adequate use of these contracts. On the other
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hand, the Code of Consumer Protection and Defense does
not apply to all these contractual mechanisms, but only under
certain subjective requirements since it requires the necessary
participation of a consumer.
In this context, in our legal system, there is a deficient
regulation and protection of vexatious clauses, since although
the application of the existing rules seeks to counteract such
abuse, and can protect any contracting party, it has only provided
for the control of a group of vexatious clauses, without enabling
a general control of their vexatiousness; and in the consumer
protection and defense code, it protects a group of subjects
(consumers) who have entered into a consumer contract, which
leads to a lack of protection of the contractual situation of non-
consumer contracting parties, since basically, our legal system
has focused basic protection mechanisms on certain types of
subjects and on certain commercial activities, which have been
included within their respective scope of application.
In addition, it should be borne in mind that in the
absence of comprehensive control of vexatious clauses in
the Civil Code, it should be taken into account that the legal
structure provided in Book VII (contracts, general part), is
composed of a series of legal institutes and remedies that
regulate parity contracting, Therefore, the use of these are
incompatible and especially does not allow their application to
standardized contractual mechanisms, where precisely there is
a lack of parity and contractual freedom of the parties, since
its perfection is achieved through the act of adhesion, so it is
necessary to establish a comprehensive and updated control
mechanism to alleviate any vexatious situation.
Given this situation, this report aims to describe and
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identify the need to establish a legal framework of general and
substantive control to avoid the insertion of any vexatious
clause in these contractual mechanisms. To this end, it justifies
and proposes the need to modify and update the civil code
that regulates the contractual phenomenon generated by mass
contracting, which should be based on considering that this
form of control applies to all legal subjects involved in this
type of contractual relations, and thus obtain efficient and total
protection of the subjects included in these contracts.
5. REGULATORY REQUIREMENTS OF THE SYSTEM
The need to establish an adequate and comprehensive
regulation of vexatious clauses that are inserted in mass
contracts is evident, and for this purpose, it is necessary to
study the existing regulation within our legal system, analyzing
the provisions of the civil code and the code of consumer
protection and defense, to verify the existence of deficiencies
in the normative regulation and its application.
Likewise, it is identified and described that although
the consumer protection and defense code has foreseen
a comprehensive control framework, it only establishes
protection for consumers considered in its regulatory
framework, not being able to be applied to other contracting
parties exposed to these situations of vexation, and therefore
its solution is sectorial, This without taking into account that
a control mechanism established for a judicial control system
has been foreseen, but that in our country it was implemented
for administrative headquarters, which also evidences a deficit
of due control since it will not be possible to invalidate in said
headquarters a vexatious clause, which reaffirms our proposal
for a solution through a modification of the civil code.
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CONCLUSIONS
The vexatious and presumably vexatious, which
makes it necessary to modify the civil code in this matter,
and to establish a legal framework of full control so that any
predisposed content that generates a contractual imbalance,
to the detriment of those who adhere to it, is corrected and
rebalanced and thus maintain contractual equity.
Although the Consumer Protection and Defense Code
has regulated vexatiousness control mechanisms, taking into
account the German system, it must be taken into account that
such a system has been designed for its application in court, since
the declaration of invalidity of a vexatious clause is foreseen to
be determined and declared by a judge, and even though it has
been decided that an administrative officer may not apply it, this
does not make it impossible for it to continue to be inserted in
other contracts, which does not definitively solve the use of this
clause, in addition to the fact that its application is restrictive,
since it has been focused only on consumer contracts where a
final consumer necessarily participates.
Through this report we propose an amendment to the
civil code regarding the regulation of adhesion contracts and
general contracting clauses, specifically inserting a general
background control mechanism and together with a system
of lists, to avoid the insertion of any clause that leads to a
contractual imbalance and violates good faith in this matter.
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¿Por
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Lima: Edited by
the Universidad de Ciencias Aplicadas - UPC.
Received:
04-01-2022
Approved:
01-7-2022
Juan Abelardo Villanueva Alarcón:
Independent Legal
Researcher. Partner at Villanueva at Partners
City:
Lima
Country:
Peru
Email:
jabelardovillanueva@gmail.com
ORCID:
https://orcid.org/0000-0002-7259-8174