Abusive Clauses and Their Implications in Debt Collection

The recent ruling by the Superintendence of Industry and Commerce (SIC) has set an important precedent in commercial and consumer law that directly impacts collection strategies. The SIC has determined that contractual clauses allowing sellers to retain payments from a client when the client has not received the agreed goods or services are abusive and violate consumer rights. This ruling has direct consequences for companies and, therefore, for debt collection practices.

The Problem from a Collection Perspective

Traditionally, some companies included in their contracts a clause allowing them to retain client payments or deposits if, for any reason, the client did not complete the transaction or failed to collect the product. Under this agreement, the company could consider the retained money as compensation and, in many cases, refused to return it.

However, the SIC has ruled that this practice is illegal, as it creates an imbalance in the contractual relationship by leaving the consumer without their money and without the product or service. The authority declared that these types of clauses are null and unenforceable, as they contradict the constitutional principles of fairness and justice.

Direct Impact on Collection Management

For companies seeking to recover outstanding debts, this ruling implies:

1. Weakened collection claims: It is no longer valid to demand full payment solely on the basis of a clause now deemed abusive and void. If a debtor owes a partial amount that was retained by the company, such a claim has no legal grounds.
2. Requirement to prove actual damages: The collection approach must shift from payment retention to proving the real damages caused by the client’s breach. The company must demonstrate storage costs, product damage, or administrative expenses to justify collecting any amount. This process must be pursued through ordinary litigation, which can take several years to resolve.
3. Risk of sanctions: Attempting to collect or retain money through a clause declared abusive exposes the company to potential lawsuits from debtors and possible sanctions by the SIC. This applies to both the creditor company and the collection agency representing it.

Strategic Recommendations

To mitigate legal risks and optimize debt recovery, companies should:

• Review and amend contracts: It is essential to remove any clauses that allow money to be retained under the pretext of non-compliance without delivering the product or service.
• Focus on recovering actual losses: Instead of seeking full retention of payments, companies should direct collection efforts toward the recovery of verifiable damages, supported by evidence such as production costs, storage expenses, or other related losses.
• Train collection teams: Both internal and external collection teams must understand that debtors may now invoke this SIC ruling. Strategies should remain flexible, transparent, and oriented toward conciliation.

In Trébol Jurídico, we closely monitor regulatory developments like this one to ensure our clients adopt compliant, effective, and fair collection practices.