Gross Disparity

Also known as: Exploitation, Laesio Enormis, Unconscionability, Aşırı Yararlanma, Gabin, TCO Article 28

In short

A clear imbalance between performances obtained by exploiting the injured party's distress, thoughtlessness or inexperience, which entitles the injured party to declare itself not bound or to demand that the imbalance be removed.

Gross disparity (gabin) is one of the limits on freedom of contract. Under TCO Article 28, if there is a clear imbalance between performances under a contract, and this imbalance was obtained by exploiting the injured party’s distress, thoughtlessness or inexperience, the injured party is protected.

Conditions

Objective: A clear imbalance between the performances
Subjective: The injured party’s distress, thoughtlessness or inexperience
Exploitation: The other party knowingly took advantage of this situation

The Injured Party’s Rights

Depending on the circumstances, the injured party may:

Notify the other party that it is not bound and reclaim its performance, or
Remain bound and demand removal of the imbalance.

Time Limits (TCO Article 28(2))

The right must be exercised within one year from discovering the thoughtlessness or inexperience, or, in cases of distress, from its end, and in any event within five years of the contract’s conclusion.

Merchants

Because merchants must act as prudent businesspersons, claims of inexperience or thoughtlessness are often rejected in commercial matters. Exploitation of distress may still be raised in commercial relationships — for example, a grossly unbalanced transaction imposed on a company in severe liquidity difficulty.

Related Concepts

Defects of consent: mistake, fraud or duress
Hardship: extraordinary changes after the contract is concluded
Unfair contract terms in consumer contracts

Frequently Asked Questions

Is making an expensive purchase alone gross disparity?

No. A clear imbalance between performances is not enough on its own. It must have been obtained by exploiting the injured party's distress, thoughtlessness or inexperience.

Within what time can gross disparity be relied on?

Within one year from discovering the thoughtlessness or inexperience, or, in cases of distress, from the end of the distress, and in any event within five years of the contract's conclusion (TCO Article 28(2)).

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