Symmetry of Price Modification Clauses and Valorisation Clauses as a Safeguard of Consumer Rights

Abstract

The subject of the study (scientific and research) is the answer to the question – on the example of price modification and valorisation clauses – whether the abusive nature of contractual provision is influenced by symmetry, i.e. identical regulation of a specific issue from the point of view of both parties to the agreement (including a loan agreement linked to a foreign currency). This is an extremely important issue from the point of view of the weaker party to the contract, i.e. the consumer, in relation to the entrepreneur. While in a significant number of cases the introduction of symmetrical contractual provisions into a contract sufficiently safeguards the interest of the consumer, constituting one of the solutions eliminating the abusiveness of a non-negotiable provision, in the case of the discussed provisions they may be considered abusive, even if the requirement of symmetry is met. In such a case, it is necessary to use other instruments to protect consumer interests. It is not sufficient to reserve the right of withdrawal from the contract in favour of the consumer (as adopted by the legislator), because in the case of monopolistic markets it is impossible to say that the consumer’s right is secured in this situation, as in the case of certain types of contracts, such as credit agreements. In order to protect consumer rights, in addition to the right of withdrawal and symmetry, in the event of price and cost changes, the following should be regulated: frequency of changes, postponement of change, or maximum limit for change. Such an analysis has not yet been carried out, including taking into account the case law of the Court of Justice of the European Union.