Is the Consumer's Offer with Waiver of Actions VALID OR VOID FOR ABUSIVE?

The question is much more complex than it seems, because, in law, it is rarely possible to say "yes, always" or "no, never". Everything is more relative than it seems and most of the time, we are left with "it depends". But let's put ourselves in 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 time, provokes an alternative reaction (new flight, new hotel, etc.) that is proposed to the traveler and he accepts. In such cases, it is very common in the sector to draw up a document in which the consumer and user accepts the alternative or the solution offered and, thereby, waives the right to claim for such incident.

Well, there is much legal debate as to whether or not, with the regulations on unfair terms, this alternative can be offered together with the acceptance and waiver of claims by the consumer, since it is well known that under no circumstances can a waiver of rights or a waiver of future legal action be imposed on the consumer.

In this sense, the controversy regarding this type of agreements with waiver of actions and releasing nature of agreements between professionals and consumers has been resolved very recently (year 2020). We refer, in the first place and in the international European 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 generically null and void and susceptible of being so in the framework of the individual contract (floor clauses drafted by banks in adhesion contracts, in that case) that subsequently contain an agreement in exchange for waiver of legal actions and other considerations.

The CJEU's response to the controversial issue is to validate the consumer's right to waive his or her rights, as long as it is a matter of free and informed consent. The European Judgment also makes us see that it is not the same thing to waive future rights for non-performance as to waive a right of action that already exists because the non-performance is already being remedied by signing the document.

In summary, we can deduce from this judgment that it will be the judge of each country who will have the capacity to analyze whether the waiver clause meets the requirements of good faith, balance and transparency; This means the same as demanding that it is a contract in which the parties have negotiated (adhesion or "standard" contracts are not valid), as well as in which the drafter (the tourist company, in our example) offers compensation or a reasonable solution in view of the breach and the damage caused, and in any case it must be written in a clear and understandable language for any average consumer.

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

Already in Spain, the very important European judgment that we have cited above was recognized in our country with the recent Judgment No. 589/2020, dated November 11, 2020, issued by the Civil Chamber of the Supreme Court in Appeal 1532/2018 . This judgment understands that, "starting from a situation of uncertainty, controversial, and in order to avoid litigation, the parties agree to make reciprocal concessions and reach an agreement that turns uncertainty into certainty."

It is clear, therefore, that the parties are free to waive the expense and hassle involved in a legal proceeding at a time when offers are made in a clear and simple manner and these are understood and accepted by those who, although perhaps knowing that in a lawsuit for the incident could get more compensation, decide to close the matter to full satisfaction with the compensation that is offered. And the same can be said the other way around; that is, in the event that the agency, hotel or airline company is not really responsible for the breach and, despite this, chooses not to incur in defense costs and unnecessary loss of time, offering what is called a "commercial offer" which is accepted by the traveler in exchange for not claiming later for the same incident.

Because what our High Court established as requirements to be considered in this type of agreements was that, in order 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, i.e., a negotiated transactional agreement.
• Clear and understandable wording for an average consumer regarding the 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 on the consumer a waiver of actions for simply giving correct compliance to what had previously been breached, so that the debate will remain open and, what is certain is that we must always analyze case by case and case by case, in addition to having correct legal advice before drafting this type of document.

Fernando de Llano (Attorney at Law T&L)