ABUSIVE CLAUSES AND CONSUMER RIGHTS IN ECUADOR

Abstract

It is the fundamental duty of the Ecuadorian State to protect the rights recognized by its Constitution through the creation of norms and institutions that guarantee the access to justice in case of any type of violation from public or private institutions. This paper focuses on abusive clauses as one of the most frequent flaws in adhesion contracts, which are defined as those where one of the parties is limited to accepting the clauses written by the other, without the possibility to modify or negotiate them at any aspect that may be unacceptable. Consequently, it is common that some of these imposed clauses are abusive, by imposing conditions that in a contractual relationship based on the principle of equality, the affected party would not voluntarily accept. In this context, it is intended to systematize two types of clauses that in adhesion contracts can affect the rights of users and consumers in Ecuador through a theoretical and normative analysis. To develop the study, a qualitative approach methodology was applied based on the respective methods of legal dogma. The result is a characterization of abusive clauses and prohibited clauses and their negative impact on the rights of consumers and users.