About "unfair terms" (in credit agreements)

you are perhaps concerned?

Bank abuse

In French law (unlike Anglo-Saxon legal systems) , it is difficult to understand what " an abusive clause " can be.

An Ordinance, #du monde avant , (n ° 2016-131 of February 10, 2016), explains that:

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" In contracts concluded between professionals and consumers, clauses which have the object or the effect of creating, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract are unfair.
Without prejudice to the rules of interpretation provided for in Articles 1188 , 1189 , 1191 and 1192 of the Civil Code , the unfair nature of a clause is assessed by referring, at the time of the conclusion of the contract, to all the circumstances surrounding its conclusion, as well as all other clauses of the contract. It is also assessed with regard to those contained in another contract when the two contracts are legally linked in their conclusion or execution.
The assessment of the unfair nature of the clauses within the meaning of the first paragraph does not relate to the definition of the main object of the contract or to the adequacy of the price or the remuneration for the good sold or the service offered, provided that the clauses are written in a clear and understandable manner
".

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Did you understand something?

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It is a question of (significant!) Imbalance between reciprocal rights and obligations, which, in terms of credit, poses a difficulty since the obligations - once the credit has been released - weigh only on the borrower.

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It is exactly the same thing with regard to insurance contracts, breeding ground for unfair terms of all kinds (but my subject is limited to credit contracts ), with the difference that the insurance coverage contract has a lifespan of d. 'one year, the credit agreement commits you, for its part, for practically your entire life.

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It's Captain Haddock's adhesive plaster: we can't get rid of it!

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What defense?

In the sphere of banking and financial law, abusive, illegal or twisted practices ... abound.

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The victims too, but they must demonstrate that a written clause (this is not always the case) creates an imbalance to their "detriment".

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We have identified (and obtained legal decisions) about fifteen unfair terms in credit contracts, all of which have the effect of increasing the total cost of credit in a surreptitious manner :

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  • Clauses relating to the forfeiture of the term

  • Clauses relating to the conditions for changing from a variable rate to a fixed rate

  • Interest calculation conventions

  • Deposit account domiciliation agreements

  • Early repayment conditions

  • Currency exchange and currency of account agreements

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The peculiarity of the unfair term is that it cannot be seen , neither at first glance, nor even at the glance of a legal professional.

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It takes a very deep analysis to convince a judge that such and such a clause would have changed the situation if it had not been written, and used by the bank at the expense of the borrower.

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I cannot deny it, the benches of the Defense are in pain. This demonstration is very difficult.

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We can however be pleased with the Judgment rendered very recently by a Judicial Court and a Court of Appeal, which declared the clause for calculating credit interest calculated over 360 days (the famous "Lombard clause") to be abusive, and, considering correctly As this clause is not detachable from the interest stipulation itself, declare the total forfeiture of the lender's right to conventional interest.

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However, this request must be supplemented with a mathematical demonstration. Otherwise, the request cannot be admitted to court.

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To win, you have to calculate!

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ABOUT US

Our law firm was created in 1994 in Paris. It was born out of an overwhelming desire to defend consumers against the illegal or deceptive practices of certain financial service providers.

By designing a simple and efficient working model, specifically geared towards the success of requests for the declaration of unfair terms, we believe that we have fulfilled this objective. Contact us to find out what we can do for you.

 
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