Abstract

GONZALEZ SINISTERRA, Saray Viviana. ENHANCED CONSUMER PROTECTION IN CONSUMER CONTRACTS. Novum Jus [online]. 2022, vol.16, n.2, pp.187-214.  Epub Dec 10, 2022. ISSN 1692-6013.  https://doi.org/10.14718/novumjus.2022.16.2.8.

One of the traditional requirements regarding the unconscionability theory is the absence of individual negotiation of unfair terms. However, Argentine legislation extended protection to those terms that have been individually negotiated by the parties in consumer matters. This article aims to establish whether it is possible to apply the unconscionability theory to individually negotiated terms in consumer contracts in Colombia. To this end, the characteristics of this theory in Colombia and Argentina are examined, as well as some principles and positions in favor and against, such as the estoppel doctrine, pacta sunt servanda, and the presumption of bad faith. The methodology used in the present investigation consists of a qualitative comparative law analysis regarding consumption norms in Colombia and Argentina, the study of both countries' doctrinarian positions, and examination of the jurisprudence of Colombian closing courts. Throughout this study, the favored position is the one that claims that in Colombia the unconscionability theory should not be allowed to be applied to individually negotiated clauses. Finally, a series of conclusions are presented based on the arguments of the paper.

Keywords : consumer law; consumer statute; unfair terms; individually negotiated terms; Argentine legislation; Colombian legislation.

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