The jurisprudential doctrine on the nullity of predisposed clauses to the detriment of the non-consumer adherent

Abstract

The Spanish legal framework established through the General Contracting Conditions Law and in the Consolidated Text of the General Law for the Defense of Consumers and Users (TRLGDCU, by its acronym in Spanish), establishes a notorious double control over the predisposed clauses to the detriment of the adherent, which includes a first inclusion control and a second, transparency, which must exceed the clauses of the adhesion contracts; although the second is currently closed to non-consumer adherents. For reasons of opportunity, in this paper we question the doctrine of the Spanish Supreme Court in this regard, which supports this position in two very recent decisions of January 16, 2023, and we explore the possibility of suggesting a legislative change in order to unify both situations, applying the control of transparency even in the case of a non-consumer adherent who develops his professional or business activity outside the object of the adhesion contract. Although current jurisprudence correctly interprets the Spanish legal framework to the extent that it applies it to the subjective scope of the TRLGDCU, we are in favor of a less restrictive interpretation (which may or may not require a legislative change) for those situations in which there is a non-consumer adherent that develops an activity completely unrelated to the activity of the predisposing agent.