Cambodia: Prakas of the Ministry of Commerce on Unfair Contractual Clauses

(This text is an unofficial translation of the Prakas in Khmer language.)

Chapter 1: General Provisions

 Article 1: Purpose 

This Prakas sets out the conditions and procedures applying to the standard form of the contract and types of unfair contractual clauses in order to protect consumers’ rights in connection with the acts of making excessive benefits and abuse of circumstances through contractual relations made between consumers and business persons for the supply of goods and/or services in the Kingdom of Cambodia.

Article 2: Scope

This Prakas applies to all standard forms of contracts drawn up for the purpose of supplying goods and/or services in the Kingdom of Cambodia as defined in the Law on Consumer Protection.

Article 3: Definitions 

Some of the key terms of this Prakas have the following meanings:

1. “Business person” means any person who does business as defined in the Law on Consumer Protection.
2. “Civil Code” refers to the Civil Code promulgated by Royal Code No. Nor.Sor / Ror.Kor.Mor/1207/030 dated December 8, 2007 and subsequent amendments or replacements.
3. “Contractual clause” has the same meaning as defined in the Civil Code.
4. “Consumer” has the meaning as defined in the Law on Consumer Protection.
5. “E-commerce” has the meaning as defined in the Law on E-Commerce.
6. “Goods” refer to all movable properties, including tangible and intangible objects, except currency and immovable properties.
7. “Standard form of contract” refers to any contract or clause of a contract prepared in advance by the business person for the supply of goods and/or services to the consumer without allowing the consumer to negotiate, modify or influence the contract clause in any form.
8. “Key contractual clauses” mean any of the key clauses or conditions of the contract (whether in the standard form of the contract or the electronic standard form) must be important to the consumer or the consumer have perceived them as important for formation of the contract and the business person should have been aware of the importance of those conditions or contract clauses.
9. “Unfair contractual clause” refers to any clause of the standard form of contract that make excessive benefits from the consumers.

Chapter 2: Requirements of the Standard Form of Contract

Article 4: Requirements of the standard form of contract 

1. The standard form of the contract must be in writing and clear, with each clause is written in words that are easy to understand.
2. The standard form of the contract must be drawn up in Khmer language. The business person can draw up a standard form of contract in a foreign language at the request of the consumers in addition to the standard form of contract in Khmer language.
3. The standard form of the contract shall specify the minimum information in accordance with the requirements set forth in the Law on Consumer Protection and other applicable regulations relating to this minimum information.

Article 5: Explanation of the standard form of contract 

1. The business person must explain the key points and provide clear information about the key contractual clauses of the standard form of contract.
2. For e-commerce, the consumer must be given a clear explanation of the key contractual clauses of the standard form of the contract to give the user the opportunity to read them clearly before accepting the standard form of the contract.

Chapter 3: Act of making excessive benefits 

Article 6: Act of making excessive benefits 

The business person shall not include any contractual clause in the standard form of the contract in order to make excessive benefits from the consumer as defined in Article 351 of the Civil Code.

Article 7: Judgement and evaluation of the act to making excessive profits 

1. Judgement and evaluation on the contractual clause which has nature of making excessive benefits shall be made by considering aspects of one or all situations of the parties to the standard form of the contract, including economic superiority, social status, ignorance or lack of experience and other circumstances that are important or lead to the creation of a contract.
2. Criteria for judging the contractual clause which has nature of making excessive benefits may be governed by regulations of each sector issued by competent ministries, institutions, or regulators.

Chapter 4: Unfair contractual clauses 

Article 8: Abuse of circumstances

The business person shall not abuse the circumstances, where the consumer cannot modify the standard form of the contract, by stipulating the unfair contractual clauses in the standard form of the contract, which create excessive benefits from the consumers.

Article 9: Contractual clause which is considered as unfair contractual clause 

Unless otherwise specified in the regulations for each sector, the business person shall not stipulate unfair contractual clauses in the standard form of the contract as follows:

1. All exceptions or limitations of liabilities of business person regarding the guarantee of goods and/or services as defined in Articles 539, 540, 541, 542, 542, 543, 544 and 545 and other related articles of Civil Code.
2. All contractual clauses that give rights to the business person to make significant changes or changes in specification, quantity, price and quality of the goods and/or services without the prior consent of the consumer.
3. All contractual clauses that give rights to the business person to interpret unilaterally and absolutely or terminate the contract at the discretion of the business person.

Article 10: Amendment of the contractual clauses 

1. All amendments to the key contractual clauses require the written consent of the consumers.
2. The business person shall notify the consumers in writing prior to the validity date of any amendment to non-key contractual clauses.

Article 11: Consumer’s rights 

The consumer has the right to:

1. Obtain important information regarding goods and/or services and the contractual clauses of the standard form of contract.
2. Ask for clarification and further explanation of the business person and get enough time to consider the contractual clauses, especially the important contractual clauses before signing.

Article 12: Competent regulators

Regulators in each sector and the competent authority may prepare various legal documents to work in detail on the following issues:

1. The rights and obligations of the consumer and the business person regarding the minimum requirements for the explanation and procedure of signing the standard form of the contract; and
2. Detailed rules and requirements regarding unfair contractual clauses.

Chapter 5: Competent institutions 

Article 13: Preliminary inspection 

The business person shall ensure that the standard form of the contract drawn up by the business person does not contain contractual clauses that make excessive benefits and unfair contractual clauses. In case the business person wishes to request an inspection on the standard form of the contract in order to obtain compliance certification, the business person may request the inspection to the following competent institutions:

1. National Committee for Consumer Protection for any sector which is not under the control of a particular regulator; or
2. Competent regulators in each sector in accordance with applicable laws and regulations.

Article 14: Complaint 

Any consumer or related parties may file a complaint in person or through the relevant consumer associations for any non-compliance with any of the provisions of this Prakas to the following competent authorities:

1. National Committee for Consumer Protection; or
2. Ministries, institutions, or regulators that have competence in each sector in accordance with the laws and regulations in force.

Article 15: Competence of the National Committee for Consumer Protection 

The National Committee for Consumer Protection has the discretion to initiate an investigation into a standard form of contract of a business person by requesting that the business person submit or provide a standard form of contract for review.

Article 16: Rescission and ratification 

The consumer may rescind or ratify any contractual clause that is unfair or has nature of making excessive benefits in accordance with the requirements and procedures set out in Article 360, Article 362 and Article 363 of the Civil Code by signing or affixing the thumbprint on the written form separate from the standard form of the contract confirming the ratification or rescission. Any rescission or ratification of the consumer shall only exempt the liabilities of the business person which are set forth in this Prakas.

Chapter 6: Acts and unfair practices and transitional penalties

Article 17: Acts and unfair practices and transitional penalties

Any use of unfair contractual clause which is prohibited by this Prakas shall be deemed to be unfair act and unfair practice under the Law on Consumer Protection.

Any business person who violates the provisions of this Prakas shall be subject to transactional penalties in accordance with Articles 41 and 44 of the Law on Consumer Protection. All transitional penalties set forth in this Prakas shall not be exempt from the criminal and civil liabilities set forth in other relevant laws and regulations.

Chapter 7: Final Provisions 

Article 18: Abrogation

Any provisions that are contrary to this Prakas shall be null and void.

Article 19: Enforcement 

Composition of the National Committee for Consumer Protection, Director of the Cabinet, Delegate of the Royal Government of Cambodia in charge of the Director General of the General Department of Consumer Protection, Competition and Anti-Fraud, and the chiefs of all relevant units shall be responsible for the implementation of this Prakas in their respective duties within 6 months from the date of signing.

Phnom Penh, March 1, 2022