A consumer handed over their vehicle to a towing company, mandated by an insurance company. In the car's trunk there were belongings that the owner could not remove due to the time interval between the towing and their return home with the assistance vehicle. The belongings disappeared and the towing company refused responsibility, invoking notes in fine print on the delivery note that excluded any liability for objects left inside the vehicle. Similar situations occur in parking lots with signs that disclaim liability for vehicles and objects stored.
Portugal has had Decree-Law No. 446/85, of October 25th, for 40 years, which absolutely prohibits abusive clauses in adhesion forms and other contractual supports. The law prohibits, namely, exclusions or limitations of liability for extra-contractual patrimonial damages, for non-performance, delay or defective performance in cases of intent or gross negligence, and for acts of representatives or assistants. The use of prohibited general terms constitutes a very serious economic offense.
Fines can reach 4% of the annual turnover of the offender in Member States where widespread violations occur in the European Union, or up to 2 million euros when billing information is missing. Domestically, fines vary according to the size of the company, from 3,000 to 11,500 euros for micro-enterprises up to 24,000 to 90,000 euros for large companies.
The National Commission on Abusive Clauses was created only in 2021 and regulated at the end of 2023, without any news of its effective functioning. The author, emeritus president of apDC – Consumer Law, criticizes consumers' ignorance of their rights and the inaction of the entities with the power and duty to act, questioning how much longer abusive clauses will continue to proliferate in adhesion forms.
