Effective consumer protection is an area still in the earliest stages of its development in the Cypriot legal system. Prior to the adoption of Directive 93/13 which provided a substantive test of unfairness and which regulated the content of business contracts through ensuring that unfair terms not be considered binding to consumers, the Cypriot legal system did not provide for a level of consumer protection through statutory or case law. In essence, no measures existed aimed at protecting consumers against contract terms that had not been individually negotiated by consumers in advance and which in turn could grant a considerable advantage to businesses.
Such terms often come in the form of exclusion clauses which can exclude or restrict liability, make the liability or its enforcement subject to restrictive conditions, or exclude or restrict a person from pursuing a right or remedy. As the characteristic of an unfair term is one which increases the number or the difficulty of a party’s obligations, even a force majeure clause may come to be considered unfair if intentionally worded vaguely. If a seller can unilaterally determine a force majeure clause for example, then what is to prevent them from defining a reasonably foreseeable phenomenon as grounds for the removal of liability? Where standard form contracts were established to facilitate commercial transactions and better define the rights and obligations of the two parties, a unilateral approach to the definition of these terms by sellers would necessarily come at the cost of the consumer, who was faced with either accepting these terms or be deprived of the sought goods or services.
Prior to Directive 93/13, Cypriot consumers only had recourse to general principles of contract law and primarily procedural safeguards provided by the Contract Law, Cap. 149 i.e. the key law governing contracts in Cyprus. However and while generally sufficient, Cap. 149 was inadequate in providing the necessary tools in dealing with unfair contract terms, making the implementation of Directive 93/13 necessary for enhanced consumer protection.
Procedural Safeguards of Cap. 149
It could be argued that, in relation to regulating the use of unfair terms, the common law of contract is less concerned with the substance of the contract and more so with the procedure leading to its conclusion. If no illegality is found in what preceded the conclusion of the contract, which could in any way impact the will of the parties to be bound in contract, common law courts would hesitate in intervening since the determination of the substance of the contract remains, based on the principle of privity of contract, within the exclusive competence and autonomy of the parties.
As such, section 13 of Cap. 149, with its emphasis on the concurrence of wills, established that consent is considered a central concept of contract conclusion. If consent is considered to be given “freely”, then the contract is to be respected. With the intention to ensure this, section 14 of Cap. 149 codified a number of principles in order to safeguard that the parties’ consent is “free”, which include provisions on coercion, undue influence, fraud, misrepresentation and mistake.
Yet, beyond the rules established in section 14 emphasizing procedural fairness, Cap. 149 did not provide the necessary tools for examining the substantive unfairness of contract terms. Contrarily, while the Indian Contract Act introduced similar procedural rules, Indian courts also made use of the public policy exception under their section 23 (identical to section 23 of Cap. 149) to strike down contracts whose terms were labelled as contrary to public policy, thereby invoking the illegality of the contract’s object or consideration.
In conclusion, Cypriot law follows the general position of English contract law, where the latter has long taken the view that acceptance of the principles of freedom of contract, the binding force of contracts and the lack of a general principle of good faith and fair dealing precludes the review of the fairness of either the contract as whole or of its particular terms. This can most notably be seen in the instance of contract formation. While a promise could not be considered valid without the corresponding consideration, the acknowledgment of an inadequate or nominal consideration signifies that a substantive inequality of bargaining power is not seen as a ground for a vitiation of a contract.
As regards the fairness of particular contract terms, the common law approach can be illustrated most explicitly in its acceptance of the validity of exemption clauses. That is, when once agreed between the parties, knowingly or otherwise, these clauses can effectively exclude liability both in contract and in tort, severely impacting the balance of rights and obligations between the parties. However, beyond a favorable interpretation of the contract in favor of the weaker party in instances of inequality of bargaining power but also through the use of the contra preferentem principle in instances of ambiguity in interpretation of an exclusion clause, and save in instances of a fundamental breach of contract, the Cypriot contract law tools seemed inadequate in properly regulating the use of unfair terms.
Prior to the transposition of Directive 93/13, Cypriot courts had lacked the legal tools to confront the challenges that came with standard form contracts and in particular seemed unwilling to examine the parties’ initial allocation of risk, even if it was done unilaterally and in a standardized manner by one of the contracting parties. Instead of focusing on the pursuit of mutual assent, the courts were content with the finding of the external communication of intention by the parties through their signatures to the contract. Since both parties seemingly gave their consent to be bound by the contract, Cypriot courts appeared hesitant in interfering with its individual terms, beyond through the use of the above mentioned procedural safeguards in instances where the parties consent to be bound could be impacted. These legal circumstances are what justified the need for the implementation of Directive 93/13. It provided courts the ability to control unfair terms in consumer contracts, though the granting of discretionary power as to the interpretation of the substantive unfairness of contract terms through the control of their content. However, while there is still very limited Cypriot case law applying the Directive’s robust two-tiered unfairness test, it remains to be seen if future applications of this test by the Cypriot courts can promote effective consumer protection or if additional national legislation is required to this end.
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