A business can put something in its contract. That doesn't necessarily mean the clause is fair, or that it binds you — EU law has required member states to police this since 1993.
The directive behind every member state's unfair terms law
Council Directive 93/13/EEC on unfair terms in consumer contracts requires EU member states to protect consumers from terms that weren't individually negotiated. A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. Every EU member state has implemented this directive into its own national law — the exact national statute differs by country, but the underlying test traces back to this single EU framework.
What "good faith" and "significant imbalance" actually assess
Good faith here isn't about the seller's intentions in the abstract — it's an objective standard asking whether the seller, dealing fairly and equitably with the consumer, could reasonably assume the consumer would have agreed to the term in individual negotiations. Significant imbalance looks at whether a term substantially weakens the consumer's legal position or unfairly restricts their rights compared to what would apply without it.
Terms only individually negotiated are exempt — and the burden of proof favours you
The directive applies specifically to terms that weren't individually negotiated — standard-form contracts, terms and conditions, and boilerplate clauses presented on a take-it-or-leave-it basis. Critically, if a seller claims a specific term actually was individually negotiated, the burden of proving that falls on the seller, not on you.
Two separate requirements, not one
Beyond the fairness test itself, the directive also requires terms to be drafted in plain, intelligible language. Where a term's meaning is genuinely ambiguous, the interpretation most favourable to the consumer must be adopted — a business can't rely on unclear drafting to later argue for the stricter reading.
What happens when a term is found unfair
An unfair term simply doesn't bind the consumer — but critically, the rest of the contract continues to apply if it's capable of continuing without that specific term. You don't lose the whole agreement just because one clause is struck down; you just aren't bound by that particular clause.
How to check a specific term yourself
- Check whether the term was genuinely individually negotiated with you, or presented as a standard, non-negotiable condition — the latter is squarely what this directive targets.
- Ask whether the term significantly shifts risk, cost, or rights onto you compared to what would apply under ordinary contract law without it.
- Check whether the term is written in genuinely plain, understandable language, not dense legal drafting.
- If a term has more than one reasonable reading, note that the more consumer-favourable interpretation should apply, not whichever reading the business prefers.
What this means practically
- An unfair term doesn't bind you even if you signed or clicked to accept the contract containing it — the rest of the agreement can still stand.
- The burden of proving a term was genuinely individually negotiated (and therefore exempt) falls on the business, not on you.
- Ambiguous terms are legally interpreted in your favour as the consumer, not the business's.
- National implementation of this directive varies by country in its exact statute, but the core fairness and good-faith test is consistent across the EU.
Sources
- EUR-Lex — Council Directive 93/13/EEC on unfair terms in consumer contracts: eur-lex.europa.eu
Related Kibbo Tools
- Contract Red Flags Checklist — spot clause patterns most likely to fail the good-faith and imbalance test before you sign.