Abusive clauses, defined in the financial consumer protection regime (Law 1328 of 2009) and the Consumer Statute as those clauses 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, harming the consumer due to their weaker position.
On some occasions, certain financial actors use abusive clauses such as: i) clauses that impose on the consumer the assumption in advance of all responsibility arising from the use of credit cards, debit cards, checkbooks, mobile devices, among others; ii) clauses that allow supervised entities to modify the terms and conditions of the contract unilaterally; iii) clauses that impose on the consumer the acceptance of time limits for making claims, to the detriment of those established by law; iv) clauses that authorize supervised entities to contract or renew, on behalf of the debtor, insurance policies on assets serving as collateral for a loan, without the debtor having had the opportunity to choose, among others.
In contrast, the financial consumer protection regime (Law 1328 of 2009) prohibits contractual clauses or stipulations incorporated into adhesion contracts that provide for or imply the limitation or waiver of the exercise of financial consumers' rights; reverse the burden of proof to the detriment of the financial consumer; include blank spaces when their completion is not authorized in detail in a letter of instructions; or any other clause that limits the rights of financial consumers and the duties of supervised entities arising from the contract.
Furthermore, the Consumer Statute establishes the absolute nullity of those clauses that limit the liability of the producer or supplier for the obligations that by law correspond to them; imply the waiver of the consumer's rights that by law correspond to them; reverse the burden of proof to the detriment of the consumer; establish automatic renewal clauses that prevent the consumer from terminating the contract at any time or impose penalties for early termination, except as provided in Article 41 of this law, among others.
In conclusion, in accordance with the Consumer Statute and the financial consumer protection regime, abusive clauses are absolutely null and void, having the effect that the legal transaction has no effect, without the need for a judicial declaration, without affecting the entirety of the contract, that is, the clauses subject to this sanction shall be deemed unwritten.