Equal and not so equal situations regarding general terms and conditions.
If we refer to the general contracting conditions, it can be said that, like art, there is no single truth, but rather a myriad of options.
In the field of general terms and conditions there is no “one-size-fits-all” model that can cover all eventualities. Nor are there any “right” terms and conditions. The truth is that in terms of general terms and conditions, the best ones are those that allow their opposites to be equally good. It may seem a paradox but this is a proven reality since in practice the best general conditions are not the best ones, but the ones that best adapt to our situation, to what we want to achieve and in the most efficient way. If this is so, if there is no better model, if circumstances can easily change and everything is “liquid” – according to the expression made famous by Zygmunt Bauman – it would be legitimate to ask ourselves the following questions: why do we want them, is it necessary to have them? And what use are they to us, if they are of any use at all?
General contracting conditions usually refer to those clauses (their content can be as broad as desired) used in adhesion contracts that are applied by default to each contract. They are clauses that are recurrently used by those companies that contract massively and that therefore, it would not make sense to negotiate case by case, allowing, in this way, that, when necessary, only those specific clauses of the concrete case have to be determined, or simply agreed. These are clauses generally applied by large companies that affect consumers and that refer to services usually provided by banks, insurance companies, electricity companies, telecommunications companies, entities issuing means of payment, etc.
On the other hand, as these are often essential services and are contracts of adhesion that affect consumers (and therefore it can be said that the two parties are not in a balanced situation), there are mechanisms to protect the weaker party and to supervise this type of clause. This is the origin of all the doctrine and legislation (which varies from country to country) on “unfair terms”, meaning those with an abusive content in favor of the stronger party and which are not justified either by the subject matter of the contract or by the services provided. In most of the legislations, these clauses (the examples are infinite and their list is extended as the mischievousness of some develops) are null and void and therefore cannot be imposed on the other party.
With all of the above, their importance lies not only in the legal sphere, but in a way it can be said that the general conditions define the company’s “way of being”, its way of dealing with problems and how it views the customer. Corporate social responsibility policies would have much to reflect on in this respect.
Regardless of all this, and although most of these clauses apply to the above-mentioned contracts, it is important to note that they are not only valid for these. On the contrary: it seems a very good recommendation for any company, regardless of its size, that offers more or less recurring products or services, not so much as an attempt to impose them, which in many cases would not be possible, but to validate them.
I will try to explain briefly. What are the benefits of having the general conditions?
- The greatest benefit of the general conditions, of course, is to have a model of clauses that adapt to the “personality” of the company and to the products or services that the company proposes and that allow to make the contracting in the majority of the cases a fast, valid and efficient process.
- Having general contracting conditions implies having made a previous reflection within the company about what the company is and what it offers, having involved the different parties involved in the organization. Knowing the reason for demanding certain obligations from the other party or accepting certain responsibilities beyond because it is a standard in the sector or we have seen it in other contracts (although this may in itself be a good reason) is always a useful exercise.
- Doing the preceding exercise is not only useful, but having it done prevents us from finding ourselves in situations where we have to do it urgently and at the last minute. Sometimes there is no choice but to do it really because there is no choice.
- Putting down in writing the legal framework within which the company carries out its activities and the way in which it intends to carry them out makes it possible to foresee situations that may foreseeably occur and, consequently, to prepare a contingency plan or at least a response. It may seem banal, but this exercise is usually carried out in other areas such as the business plan, the setting of objectives, the definition of value, action plans or any other similar instrument. Surprisingly, a legal vision is often neglected in marketing models and this should not be the case, since in many cases the contracting conditions can become one of the gateways to the customer. It is not for nothing that here too we show “our cards” and it is better that the chosen deck of cards corresponds to the game we want to play.
- Having established the general conditions allows us to have a basis on which to negotiate any change and, more importantly, to understand the reason for that change and consequently, to assume it (or not) knowing its relative importance for the other party. It is clear that if it has had to be negotiated or modified it is because it is relevant for our client and that will tell us a lot about their expectations or their concerns, being at the height of the first and alert about the second, is an issue that should not be disdained.
We would find, no doubt, many other reasons that would take us far from what these lines intended, which was only to point out some of them. In addition, we have not referred to their content and the most common clauses (there will be an opportunity to do so on another occasion), but the following is a conclusion:
The general contracting conditions have to be thought by the company and not by the client or the supplier. Even so, we must avoid rigidities and be flexible enough to modify them when this is beneficial for the business we want to contract. In short, be aware that although the contracting conditions (the context and the characteristics of the other party) may seem the same, they are almost never completely so. After all, the truth has many nuances and is different for everyone. Situations are never the same, at most they are simply almost the same, which is no small thing.
