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1 The controversy over the existence of contracts with clauses that impose a period of loyalty regarding the services provided is not new. At the height of loyalty telecommunications contracts in the early 1990s and after all abuses of any kind led consumers to pay disproportionate compensation to get rid of contractual ties and began to make anti-abuse case law. Today, through competition, a greater tightening in European legislation (especially in distance contracts) and also through some judicious decisions of the Court, the contractual paradigm has once again been that of freedom. And very rightly we say. But despite the bad reputation a clause with a loyalty period can have its potential to protect the investment of the service provider and should deserve from the part of the professionals a second look. This is what I modestly propose on the basis of an investigation that I had to make a client’s order.
2 Loyalty clauses should be analyzed in the light of the general contractual clauses regime (RJCCG), contained in Decree-Law no. 446/85, dated October 25 in the wording given by Decree-Law no. 323/2001, of December 17, once they normally enter into an agreement of adhesion, in which the Clients only subscribe or accept the conditions contained in the proposal.
Article 1 (1) of the aforementioned law provides that “general contractual clauses drawn up without prior individual negotiation, which tenderers or indeterminate addressees limit themselves, respectively, to subscribe or accept, are governed by the present diploma”.
This legislative acquis essentially aims to prevent the exercise of private autonomy by the parties in contracts where the contractual freedom of one of the contracting parties is limited to mere adherence to previously established negotiating proposals, involves unfair terms.
To that end, Article 15 of the RJCCG enshrines a general principle of control, according to which “general contractual clauses contrary to good faith are prohibited.”
In accordance with the general principle cited, Article 19 (c) of the RJCCG, which are relatively prohibited clauses, provides “general contractual clauses that provide for penal clauses that are disproportionate to the damages to be repaid.”
It is within this scope that the so-called “Loyalty Clauses” are inserted, fixing, in these cases, in such cases, in advance, the amount of compensation due, in order to avoid breach of contract by the contracting party. Criminal).
According to the aforementioned regulations, criminal clauses are allowed provided they are not disproportionate to the damages.
It understands Jurisprudence in the Lisbon Relation Judgment, dated 01-03-2012, that the disproportionality should have as reference “not the singular contract or the circumstances of the concrete case, but the type of business in question … according to” objective criteria, (…) calculations of proportionality and average and usual values, taking into account factors that, in such cases, usually relate to production and to the extent of the losses. ”
On the other hand, in the Relação de Lisboa judgment of September 26, 2006, it is considered that “since Ré is obliged to maintain the provision of services in force for a certain period of time in case of default or default of that obligation, The damage incurred by Mr A, consisting in the non-payment of the corresponding monthly payments, which he would always enjoy (independently of the actual supply or the actual quantity of services provided), which he legitimately accounted for and provided exceptional commercial conditions. (…) “It was, therefore, the guarantee of customer’s connection (the R.), which motivated the advantageous conditions of the contract package and the supply of mobile phones. It can not, therefore, be attentive to the standardized negotiating framework, that the clause in question is disproportionate and should therefore not be regarded as being relatively prohibited and should not be regarded as being relatively prohibited and therefore valid.
It should also be noted that under Article 6 (1) of the RJCCG, a contractor who makes use of general contractual clauses must inform, in accordance with the circumstances, the other part of the aspects included therein for which clarification is justified. ”
3 In view of the foregoing, we are of the opinion that there is a new source for the use of this instrument. For example in the launch of a new product or service that involves a strong investment of the promoter. For example when associated with rebates substances of the product or service. However, the temporal link and the amount of compensation due in case of non-compliance must be based on “proportionality calculations and average and usual values” for “the type of business concerned”. And duty of information must still be fulfilled.