After the concern about the legal nature and the control mechanisms of the so-called consumer right in the interpretation of the General Contracting Conditions, it seems that, today, the concern of the doctrine focuses more on analysis of their right, on their legal regime.

Regarding the types of interpretation of the General Conditions of Contract (hereinafter CCGGCC), there is a typical interpretation that takes into account the law alone, disregarding the circumstances of the case, and another that has been called circumstantial and that addresses the specific case.

The problem arises, de facto, in art. 3 of the Insurance Contract Law, which establishes that “if the Supreme Court declares the nullity of any of the clauses of the general conditions of a contract, the competent public Administration will force insurers to modify the identical clauses contained in their policies”; In this way, it may happen that a clause that is void because it is abusive in a specific contract extends to all the typical cases in which it is required to act on a regular basis without it being able to be classified as such outside of that case.

The circumstantial interpretation presents no problems; It is that of contracts, as provided for in articles 1282-1283 of the Civil Code (subjective interpretation) and in articles 1283-1289 of the same (objective interpretation).

The typical or contractual interpretation, however, required of the judge or interpreter will be limited to the literal tenor of the conditions with respect to the relations between the predispose or company and its entire clientele, well understood that it is an average, honest and diligent client, and not a specific one (since with concrete there is always room for individual agreement between parties).

Among the authors who defend contractualist positions, we find those who opt for a typical or uniform interpretation that addresses the economic function performed by the CCGGCC in contractual traffic - since the conditions are a prior and general order applicable to a plurality of contracts - and the function of rationalization of business activity - given that, by its own definition, a general condition cannot be interpreted differently in each specific case -. For their part, supporters of pure contractualism understand that the only thing to be said is that the conditions are mere contractual clauses for the law, understanding that the economic and rationalized function is a problem of the predisposing businessman and not of the Law); Thus all the common norms of contractual hermeneutics will be applicable to them.

The investigation into the type of interpretation to follow must also separate two areas in which the problem has an impact:

It follows, obviously, that the abstract scope will only accommodate the typical or normative interpretation given that it is directed at a plurality of contracts, at all contractual traffic, establishing the literal tenor of the clause and the contractual type in which it is inserted.

In the specific area, the circumstantiated interpretation becomes more defensible in order to ascertain the common will of the parties (protected by art. 1281 of the Civil Code) without isolating the will of the predisposing party (which would result from a normative interpretation); Thus, it is necessary to point out for the fair development of the solution whatever the individual agreements or particular conditions agreed upon (for the examination of the general conditions of the contract, art. 1285 Civil Code), the personal qualities and mental representations of the adherent and the previous, contemporary and subsequent conduct of the parties (as imposed by 1282 Civil Code).

Regarding control of the content of these clauses, judicial interpretation and modification are often used indirectly, causing rampant legal uncertainty, by reducing the predictability and calculability of contracts, and a distortion of the function of the specific rules and tools of the legal system for the rectification and formation of acts of the autonomy of the will (good faith, good customs, public order...). In this sense, it is worth reviewing the Supreme Court rulings of February 18, 1983, April 1, 1981 and November 23, 1970.

Traditionally, two main rules have been applied in interpretation: the rule of the prevalence of the particular conditions over the general ones and the contra proferentem rule, by which doubts in the interpretation of the obscure clauses of a contract will be resolved against whoever drafted them.

Prevalence Rule.

Widely spread in our jurisprudence and in comparative law, it is included in art. 6 of the draft Law of General Conditions and in 10.2 of the General Law of Consumers and Users.

If the general condition is understood to be the one established in advance aimed at a plurality of contracts, the particular one would be the one specifically agreed upon for a specific contract; This is interesting because a clause cannot be considered particular with respect to other “more particular” ones and because what interests the foundation of this rule is the reconstruction of the will of the parties, “…intention of the parties…repealing or annulling in this way what is stated in the general conditions” (Supreme Court Judgment -STS- of January 18, 1909).

The issue is simple when the conflict occurs between a particular condition and another prewritten one. But if it is a matter of contradiction between two pre-drafted clauses, it seems common sense to assert the one that represents the core of the benefits or essential elements of the contract, a solution adopted by the Supreme Court in a ruling of November 19, 1965, making the clause of greatest importance for the economy of the contract prevail and not the “most particular” one. If it is not possible to determine which is the most important, it will be necessary to resort to the contra proferentem rule and assert the most beneficial one for the adherent.

In addition to all this, specific problems can be detected in the application of the prevalence rule:

Collection in art. 1288 C.Civil, by which “the interpretation of the obscure clauses of a contract should not favor the party that caused the obscurity”, is established as an interpretative criterion in 10.2º of the General Law of Consumers and Users; Since both articles are in force, it will apply to both the general conditions and individual or particular agreements.

The basis or purpose of the application of this rule is found in the distribution of contractual risk, by which the adherent who did not participate in the drafting of the general contract does not have to share the risks of the defective contract, and in the conservation of the business, by which the predisposing party is prevented from expressing himself clearly, sanctioning him if he does not do so.

In the LGDCU the 10.2º and the 1288C.Civil retain a substantial identity. It will apply when the doubt remains insoluble after resorting to the will of the parties, the doubt being attributable to one of them, so it will not be allegable when it comes to agreed additional clauses or when the general condition reproduces legal norms.

A clause may be doubtful because it is indeterminate, because its literal wording is uncertain or because it can be classified as ambiguous, and those that impose obligations will be applied restrictively and those that grant rights will be applied extensively (STS. November 2, 1976). Therefore, following the LGDCU, the most beneficial meaning for the adherent-consumer must be chosen.

E-commerce legislation:.

After the concern about the legal nature and the control mechanisms of the so-called consumer right in the interpretation of the General Contracting Conditions, it seems that, today, the concern of the doctrine focuses more on analysis of their right, on their legal regime.

Regarding the types of interpretation of the General Conditions of Contract (hereinafter CCGGCC), there is a typical interpretation that takes into account the law alone, disregarding the circumstances of the case, and another that has been called circumstantial and that addresses the specific case.

The problem arises, de facto, in art. 3 of the Insurance Contract Law, which establishes that “if the Supreme Court declares the nullity of any of the clauses of the general conditions of a contract, the competent public Administration will force insurers to modify the identical clauses contained in their policies”; In this way, it may happen that a clause that is void because it is abusive in a specific contract extends to all the typical cases in which it is required to act on a regular basis without it being able to be classified as such outside of that case.

The circumstantial interpretation presents no problems; It is that of contracts, as provided for in articles 1282-1283 of the Civil Code (subjective interpretation) and in articles 1283-1289 of the same (objective interpretation).

The typical or contractual interpretation, however, required of the judge or interpreter will be limited to the literal tenor of the conditions with respect to the relations between the predispose or company and its entire clientele, well understood that it is an average, honest and diligent client, and not a specific one (since with concrete there is always room for individual agreement between parties).

Among the authors who defend contractualist positions, we find those who opt for a typical or uniform interpretation that addresses the economic function performed by the CCGGCC in contractual traffic - since the conditions are a prior and general order applicable to a plurality of contracts - and the function of rationalization of business activity - given that, by its own definition, a general condition cannot be interpreted differently in each specific case -. For their part, supporters of pure contractualism understand that the only thing to be said is that the conditions are mere contractual clauses for the law, understanding that the economic and rationalized function is a problem of the predisposing businessman and not of the Law); Thus all the common norms of contractual hermeneutics will be applicable to them.

The investigation into the type of interpretation to follow must also separate two areas in which the problem has an impact:

It follows, obviously, that the abstract scope will only accommodate the typical or normative interpretation given that it is directed at a plurality of contracts, at all contractual traffic, establishing the literal tenor of the clause and the contractual type in which it is inserted.

In the specific area, the circumstantiated interpretation becomes more defensible in order to ascertain the common will of the parties (protected by art. 1281 of the Civil Code) without isolating the will of the predisposing party (which would result from a normative interpretation); Thus, it is necessary to point out for the fair development of the solution whatever the individual agreements or particular conditions agreed upon (for the examination of the general conditions of the contract, art. 1285 Civil Code), the personal qualities and mental representations of the adherent and the previous, contemporary and subsequent conduct of the parties (as imposed by 1282 Civil Code).

Regarding control of the content of these clauses, judicial interpretation and modification are often used indirectly, causing rampant legal uncertainty, by reducing the predictability and calculability of contracts, and a distortion of the function of the specific rules and tools of the legal system for the rectification and formation of acts of the autonomy of the will (good faith, good customs, public order...). In this sense, it is worth reviewing the Supreme Court rulings of February 18, 1983, April 1, 1981 and November 23, 1970.

Traditionally, two main rules have been applied in interpretation: the rule of the prevalence of the particular conditions over the general ones and the contra proferentem rule, by which doubts in the interpretation of the obscure clauses of a contract will be resolved against whoever drafted them.

Prevalence Rule.

Widely spread in our jurisprudence and in comparative law, it is included in art. 6 of the draft Law of General Conditions and in 10.2 of the General Law of Consumers and Users.

If the general condition is understood to be the one established in advance aimed at a plurality of contracts, the particular one would be the one specifically agreed upon for a specific contract; This is interesting because a clause cannot be considered particular with respect to other “more particular” ones and because what interests the foundation of this rule is the reconstruction of the will of the parties, “…intention of the parties…repealing or annulling in this way what is stated in the general conditions” (Supreme Court Judgment -STS- of January 18, 1909).

The issue is simple when the conflict occurs between a particular condition and another prewritten one. But if it is a matter of contradiction between two pre-drafted clauses, it seems common sense to assert the one that represents the core of the benefits or essential elements of the contract, a solution adopted by the Supreme Court in a ruling of November 19, 1965, making the clause of greatest importance for the economy of the contract prevail and not the “most particular” one. If it is not possible to determine which is the most important, it will be necessary to resort to the contra proferentem rule and assert the most beneficial one for the adherent.

In addition to all this, specific problems can be detected in the application of the prevalence rule:

Collection in art. 1288 C.Civil, by which “the interpretation of the obscure clauses of a contract should not favor the party that caused the obscurity”, is established as an interpretative criterion in 10.2º of the General Law of Consumers and Users; Since both articles are in force, it will apply to both the general conditions and individual or particular agreements.

The basis or purpose of the application of this rule is found in the distribution of contractual risk, by which the adherent who did not participate in the drafting of the general contract does not have to share the risks of the defective contract, and in the conservation of the business, by which the predisposing party is prevented from expressing himself clearly, sanctioning him if he does not do so.

In the LGDCU the 10.2º and the 1288C.Civil retain a substantial identity. It will apply when the doubt remains insoluble after resorting to the will of the parties, the doubt being attributable to one of them, so it will not be allegable when it comes to agreed additional clauses or when the general condition reproduces legal norms.

A clause may be doubtful because it is indeterminate, because its literal wording is uncertain or because it can be classified as ambiguous, and those that impose obligations will be applied restrictively and those that grant rights will be applied extensively (STS. November 2, 1976). Therefore, following the LGDCU, the most beneficial meaning for the adherent-consumer must be chosen.

E-commerce legislation:.