According to an overview of key points to consider when drafting contracts with consumers, standard contracts, and general transaction conditions as stipulated by the Consumer Protection Law (CPL) of 2023 and its detailed regulations, the content below analyzes specific requirements regarding clarity, comprehensibility, content compliance, and instances of prohibited clauses under the consumer protection law when drafting standard contracts and general transaction conditions in transactions between businesses and consumers.
1. Clarity and Comprehensibility of the Content of Consumer Contracts, Standard Contracts, and General Transaction Conditions
The clarity and comprehensibility of the content of consumer contracts, standard contracts (SC), and general transaction conditions (GTC) are mandatory requirements stipulated in Clause 5, Article 6 of Decree No. 55/2024/ND-CP dated May 16, 2024, detailing certain provisions of the 2023 CPL (Decree No. 55/2024/ND-CP). The nature of SCs and GTCs in consumer transactions is (i) unilateral drafting, and (ii) imposition—meaning consumers must accept the entire content of SCs and GTCs provided by the business if they agree to the transaction. Therefore, clarity, transparency, and comprehensibility for consumers are mandatory criteria to ensure that consumers fully understand the content of SCs and GTCs before deciding to participate in the transaction.
To meet the requirements of clarity and comprehensibility, it is necessary to avoid using overly technical terms, vague, qualitative, or overly broad content that consumers might not understand, potentially affecting their rights once they accept SCs and GTCs containing such unclear clauses. The following examples illustrate clauses that do not meet the clarity and comprehensibility requirements under the regulations:
Example 1: Using phrases like “other arising costs,” “reasonable arising costs,” or “other documents as required by the Seller.”
In the above example, when the contract subject is clearly defined, quantified by specific parameters regarding quantity, quality, supply limits, etc., the seller can fully determine or foresee all costs to fulfill their obligations under the contract. Vague regulations like these grant businesses the power to expand the consumer’s obligations.
Example 2: Using technical terms that are difficult to understand; abbreviations or foreign language terms without clear explanations; content requiring consumers to comply with the business's “guidelines/regulations/policies” without specifying or referencing those guidelines.
In this case, if businesses still want to stipulate these terms, they need to clarify them by adding explanations for technical terms, abbreviations, or foreign language terms to ensure consumers can read and understand the entire content of the contract/GTC; adding specific content or referencing sources (containing) these documents so that consumers can actively access and research them, for example, “the company's regulations are listed/publicly available at the transaction counter/website of the company at the address….”
Example 3: “Health check fees: based on actual arising costs. Customers only bear these fees in certain special cases.”
In this example, the customer's responsibility is not clearly defined, and specific circumstances under which the customer must bear health check fees are not identified. This clause needs to be redrafted and revised to clarify specific cases where the customer is responsible for paying this fee.
2. Compliance with Prohibited Clauses in Consumer Contracts, Standard Contracts, and General Transaction Conditions
Compared to the 2010 CPL, the 2023 CPL revises the provisions of invalid clauses to “prohibited clauses” (Article 25 of the 2023 CPL) and stipulates that the act of “stipulating prohibited clauses in consumer contracts, standard contracts, general transaction conditions” is one of the prohibited acts in consumer protection (Article 10 of the 2023 CPL). This amendment makes Article 25 of the 2023 CPL a basis for identifying civil transactions void due to violations of legal prohibitions under Article 123 of the 2015 Civil Code.
Additionally, the 2023 CPL supplements and improves the prohibited clauses (compared to Article 16 of the 2010 CPL) to ensure more practical application, specifically: Article 25 of the 2023 CPL has (i) revised some cases stipulated in Clause 1, Article 16 of the 2010 CPL and (ii) added new cases to increase flexibility, ensuring suitability with the specific circumstances and business sectors of each market type. Specifically, Article 25 of the 2023 CPL stipulates:
“In consumer contracts, standard contracts, general transaction conditions, businesses are prohibited from stipulating the following clauses:
1. Limiting or excluding the responsibilities prescribed by law of the business to the consumer, except where relevant laws allow for such limitation or exclusion;
2. Limiting or excluding the consumer’s right to complain or sue;
3. Allowing the business to unilaterally change the agreed terms of the contract with the consumer;
4. Allowing the business to unilaterally change the general transaction conditions without granting the consumer the right to terminate the contract;
5. Allowing the business to unilaterally determine that the consumer has not fulfilled one or more obligations;
6. Allowing the business to set or change the price at the time of delivering products, goods, or services, except as otherwise stipulated by law;
7. Allowing the business to change the price during the provision of continuous services without granting the consumer the right to terminate the contract;
8. Allowing the business to interpret the contract or general transaction conditions in cases where contract or condition clauses are understood differently;
9. Excluding the business's responsibility when selling products, goods, or providing services through third parties;
10. Compelling the consumer to comply with obligations when the business fails to fulfill its own obligations;
11. Allowing the business to transfer obligations to third parties without the consumer’s consent, except as otherwise stipulated by law;
12. Stipulating penalties unfavorable to the consumer for contract breaches or terminations;
13. Allowing the business to extend the agreed contract with the consumer without prior notice or without a mechanism for the consumer to choose to extend or terminate the contract;
14. Stipulating that the consumer must agree to the business collecting, storing, or using their information as a condition for entering into a contract or general transaction condition, except as otherwise stipulated by law;
15. Stipulating terms contrary to the principle of good faith as prescribed by civil law, leading to an imbalance of rights and obligations to the detriment of the consumer.”
This content also falls under the scope of review as per Article 11 of Decree No. 55/2024/ND-CP. Specifically, Clause 2, Article 11 of Decree No. 55/2024/ND-CP stipulates the authority to review SCs and GTCs regarding “prohibited clauses as per Article 25 of the Consumer Protection Law.”