La noción de cláusula no negociada y su importancia en la efectiva aplicación de los controles de incorporación y de contenido

The concept of a non-negotiated term is examined as a fundamental concept in the task of delimiting the objective scopes of application of incorporation and fairness controls. It is argued that the defining characteristics of a non-negotiated term are contractuality, pre-disposition and imposition. It is specified that, if generality is added to the aforementioned characteristics, the regarding non-negotiated term may also be qualified as a standard term. Within the framework of the treatment of the characteristics of non-negotiated terms, aspects in which national jurisprudence has been erratic and which have had an impact on the protection of the adherent are clarified. In particular, it is clarified that the predisposition alone is a sufficient indication to presume that there has been no possibility of negotiation; it is also clarified that the mere fact that certain data is filled in by the client or that the client can choose between different terms which one, specifically, will govern the contract, does not imply a transformation of the chosen term into one negotiated individually, much less does it imply the entire transformation of the contract into one freely discussed.