COMBATING BLACK AND GREY LISTS OF UNFAIR CONTRACT TERMS IN ALGERIAN AND COMPARATIVE LAW

Abstract

The issue of unfair contract terms constitutes one of the most significant challenges in consumer contract law, particularly with regard to restoring contractual equilibrium between the professional party and the consumer. It is insufficient merely to caution against such terms; the crucial question lies in how they are identified and legally characterised as abusive. The German legislator was a forerunner in this domain, adopting the 'lists approach' by dividing unfair terms into two categories: a Black List, comprising terms that are null and void by operation of law with no judicial discretion; and a Grey List, encompassing terms presumed to be unfair, subject to judicial assessment of their abusive character. The French legislator similarly developed a legislative framework to combat unfair terms. As for the Algerian legislator, significant importance has been accorded to this matter, regulated under Law No. 04-02 and Executive Decree No. 06-306. This study concludes that the Algerian legislator implicitly established a Black List through Law 04-02 — enumerating terms deemed unfair per se without granting the judge any discretionary power — while Executive Decree 06-306 adopted a non-exhaustive, illustrative enumeration, leaving scope for future regulatory additions. This approach reflects the legislator's intent to provide dynamic consumer protection that keeps pace with evolving commercial practices.