As the rhythm of trade increases, we enter into more and more contracts. Naturally, this creates the problem of cost reduction for the conclusion of said contracts and, in this respect, one of the more wide-spread solutions has been the existence of pre-formulated contracts, either in full or in part.

Indeed, in accordance with Article 1203 of the Civil Code (titled “Unusual contract terms”), “the standard clauses which provide a limitation of liability, the right to unilaterally terminate the contract for convenience or to suspend the performance of one’s obligations, all for the benefit of the party proposing them or which provide a forfeiture of rights or of the benefit of a term, the limitation of the right to raise exceptions, restrictions on the freedom of contract with other persons, the tacit renewal of the contract, the applicable law, arbitral clauses or changes to the provisions regarding the competent jurisdiction of the courts, all to the detriment of the other party are ineffective unless expressly accepted, in writing, by the other party” (emphasis added).

As a result, for the clauses considered by the text to be effective, it is insufficient for the party to sign the contract at the end (as usually happens) or for a general clause to exist to the effect that all the contractual clauses have been understood and accepted (or any other similar wording). On the contrary, an express agreement on the unusual contract terms is required, for instance by signing each such clause or, more easily, by having a clause at the end meant to expressly draw attention to the unusual contract terms.

Although the provisions of Article 1203 of the Civil Code contain a limitative sequence of clauses, the scope of application thereof is fairly large.

On the one hand, the text is not limited to a specific set of persons. Otherwise put, it can be fully applicable both for legal relationships between professionals [1] and consumers as well as for legal relationships between professionals [2].

On the other hand, some of the aforesaid unusual terms can be subject to either an extensive interpretation or to wide-spread practical use. In the first category, one could mention for instance limitation of liability clauses [3] or clauses for the forfeiture of rights of the other party (e.g. forfeiting the right to claim a non-performance of a contractual obligation unless it is done in a short timeframe [4]). In the second category, one could easily include clauses such as the right to unilaterally terminate the contract for convenience (Article 1276 of the Civil Code) or the imposition of the courts at the proposing party’s headquarters as competent jurisdiction for the future disputes between the parties (Article 126 of the Code of Civil Procedure).

By also taking into account the powerful sanction associated with the failure to comply with Article 1203 of the Civil Code – the ineffectiveness of the clauses -, we can infer that the (non)fulfilment of the requirements of acceptance of unusual contract terms is hugely important, both for consumers and for professionals alike.

[1] For a definition of the term “professional”, please see Article 8 (1) of Law no. 71/2011.

[2] For a legal relationship between consumers, it is perhaps more difficult to imagine a general and repeated use of clauses within the meaning of Article 1202 (2) of the Civil Code.

[3] In a strict sense, the clauses which limit the amount of damages to be paid by the party in case of non-performance of a contractual obligation; in a broad sense, this could encompass clauses thorough which the mechanism of contractual remedies for non-performance is suppressed (e.g. the party renounces the right to unilaterally terminate the contract for cause), without excluding a whole range of other clauses, depending on the person interpreting the text (e.g. a reduction of the statute of limitations, subject to the provisions of Article 2515 (5) of the Civil Code).

[4] While complying, however, with the limits set forth by Article 2546 of the Civil Code.