Our mission is to establish the difference between abusive clauses and the abusive exercise of a right, although both figures are studied under the theory of abusiveness of law, they do not mean the same thing, and they entail different sanctions.
Abusive clauses are defined in the Consumer Statute, a regulation that indicates that these are an unjustified imbalance in the contractual relationship - the aim is contractual balance between the parties entering into it - providing protection or security to the contracting party holding the position of the weaker one.
The Consumer Statute (Law 1480 of 2011) in its Article 42 establishes the definition of abusive clauses: "Abusive clauses are those that produce an unjustified imbalance to the detriment of the consumer and those that, under the same conditions, affect the time, manner, or place in which the consumer may exercise their rights"[1] affecting the non-professional or consumer... and regarding abuse of right, we must clarify that rights are not unlimited or absolute; they have limits, since without that limit there would be no social or economic order. Our legal system defines the abusive exercise of a right as "a deviation or distortion of the spirit of rights, whether because they are exercised with the cold intention to cause harm, because there is no current and own interest... or when exercised in a misguided manner, that is, different from its own natural purpose or outside its appropriate limits"[2], the latter being linked to abuse of a dominant position, and both to good faith.
Two legal figures can be applied to abusive clauses, which ultimately lead to a sanction for those holding a dominant position, or those who establish abusive clauses in contracts that are generally contracts of adhesion.
The figure of ineffectiveness by operation of law – the legal transaction has no effects and does not require a judicial declaration – clauses subject to this sanction are as if they were not written, and they are described in Article 43 of the Consumer Statute, or voidability – the element of consent or capacity of the contractual relationship is affected – although abusive clauses are established, it does not mean that the contract does not exist and that the obligations have ended; on the contrary, the contractual relationship subsists and does not cease to exist; the abusive clause is null – whenever this is possible –.
Abusive clauses have certain characteristics such as: being pre-drafted or negotiated stipulations, producing an unjustified imbalance in the rights and obligations of the contract, and entailing an assessment according to the circumstances of the specific conditions of the legal transaction[3]
The Supreme Court of Justice of Colombia, in a ruling of the Civil Cassation Chamber of March 7, 1944, presents abuse of right when it is "exercised with the sole intention of causing harm or without legitimate motive, that is, formally in the sense of legality, but unjustly; which happens in truly abusive acts, when exercised in a misguided manner, that is, different from its own natural purpose or outside its appropriate limits"[4]
There are several examples of investigation processes opened by the Superintendence of Industry and Commerce –SIC- in the different sectors of the Colombian economy, such as:
In the hotel sector, the SIC has opened investigation processes due to abusive clauses in the contracts that hotels have for their users, such as the change of the room reserved by the guest by the hotel without any implication for the hotel[P1], or exempting itself from liability for any accident in transportation contracts, even for negligence[5].
In the financial sector, abusive clauses vary in certain aspects, but they meet the characteristics of these, such as the clause where the entity reserves the right to withdraw the balance of a loan installment early – without the payment term for the installment having expired – or those that limit early payment without respecting users' decisions about the destination of the money, which could be towards interest or principal, and if it is towards the latter, it could decrease the value of the loan installment[6] where we can note that in the clauses there is an imbalance but it is already unjustified because the consumer is harmed, affecting the time of the obligation due to the entity's arbitrariness.
Therefore, it can be concluded that abuse of right implies an abnormal use of the right where its effect is the imposition of liability[7], requires a judicial declaration, and the abusive exercise must be proven. And abusive clauses may never be used and be ineffective by operation of law, without the need for a judge to declare such ineffectiveness, or the judge may declare the voidability of the clause if there were defects in consent, which would be a relative nullity, or absolute nullity may be declared for violation of the constitutional principle of good faith – this when the principle of good faith is used as a corrective in standard or adhesion contracts – where contractual or pre-contractual civil liability will be declared.