Offer with a waiver of consumer actions IS IT VALID OR VOID BECAUSE OF ABUSIVE?

The question is much more complex than it seems, because, in law, it can rarely be said “yes, always” Or “no, never”. Everything is more relative than it seems and most of the time, we are left in a “It Depends”. But let's put ourselves in a situation: let's imagine that a company providing tourist services makes a mistake in a reservation or there is a breach in the contracted services that, at the moment, causes an alternative reaction (new flight, new hotel, etc.) that is proposed to the traveler and he accepts. In these cases, it is very common in the industry to draft a document in which the consumer and user accepts the alternative or solution offered and, with this, renounces claiming for that incident.

Well, there is a profuse legal debate about whether, with the regulations in hand regarding null and void clauses as abusive, this alternative can or cannot be offered together with the acceptance and waiver of claims by the consumer, since it is well known that a waiver of rights or a waiver of future legal actions cannot be imposed on him under any circumstances.

In this sense, the controversy regarding this type of agreement with the waiver of actions and the liberatory nature of agreements between professionals and consumers has been resolved very recently (year 2020). We refer, first of all and within the European international framework, to the Judgment of the Court of Justice of the European Union of July 9, 2020, case C-452/18, which even analyzes the content of clauses already declared invalid generically and likely to be invalid within the framework of the individual contract (floor clauses drawn up by banks in membership contracts, in that case) that subsequently contain an agreement in exchange for the waiver of legal actions and other considerations.

The CJEU's answer to the controversial question involves validating the consumer's right to waive their rights, provided that it is a matter of free and informed consent. The European Judgment also makes us see that renouncing future rights for non-compliance is not the same as renouncing a right of action that already exists because non-compliance is already being resolved with the signing of the document.

Briefly, we can deduce from this Judgment that it will be the Judge of each country who has the capacity to analyze whether the waiver clause meets the requirements of good faith, balance and transparency; which means the same as requiring that it be a contract in which the parties have negotiated (membership or “type” contracts are not valid), as well as in the one who drafts it (the tourism company, in our example) to offer compensation or reasonable solution in response to the breach and the damage caused, and must in any case be written in a clear and understandable language for any average consumer.

And we must also distinguish that something quite different from the consensual agreement with a declaration of satisfaction with the solution given in the incident would be, of course, to intend to make the consumer renounce any future claim that may regarding arise that new service that has been offered at no cost to him (let's imagine, for example, that the new reservation also contained an error).

Already in Spain, the very important European ruling that we have cited above was recognized in our country with the recent Judgment No. 589/2020, of date November 11, 2020, Dictated by the Civil Division of the Supreme Court In the Resource of Cassation 1532/2018. This judgment understands that,”starting from a controversial situation of uncertainty, and to avoid litigation, the parties agree to make reciprocal concessions and reach an agreement that turns uncertainty into security.”

It is clear, therefore, that the parties are free to waive the expense and burden of a judicial proceeding at a time when offers are made in a clear and simple manner and these are understood and accepted by those who, even knowing perhaps that in a lawsuit for the incident they could obtain more compensation, decide to close the matter to full satisfaction with the compensation offered to them. And the same can be said in reverse; that is, in case the agency, hotel or airline is not really responsible for the breach and, despite this, it chooses not to incur defense costs and unnecessary waste of time, offering for this purpose what is called a “commercial offer” that is accepted by the traveler in exchange for not later claiming for the same incident.

Because what our High Court decided, as requirements to be considered in this type of agreement, was that, for them to be valid, the following two basic premises must be respected:

• The existence of an individual agreement with respect to a specific service, that is: a negotiated transactional agreement.
• Clear and understandable wording for an average consumer regarding a transactional agreement, without giving rise to interpretations or assumptions.

Therefore, these individually agreed clauses will not always be null and void, nor is it valid to impose a waiver of actions on the consumer simply to correctly comply with what had previously been breached, so that the debate will continue to be open and, what is certain is that we must always analyze case by case and assumption by case, in addition to having correct legal advice before starting to write this type of document.

Fernando de Llano (T&L Attorney)