The progressive growth of the popular and solidarity-based financial sector in Ecuador has led to an increasing sophistication of its financial operations, which are similar to services provided by banking institutions. This has resulted in the widespread adoption of adhesion contracts for the provision of credit services and financial products. This raises the question of whether the application of typical clauses used in the conventional banking system is compatible with the solidarity-based nature that characterizes savings and credit cooperatives.
From their very nature, cooperatives are part of the social and solidarity economy, characterized by the application of principles of equity, solidarity, and the prioritization of labor over capital. These principles foster a closer relationship between users and the financial institution, moving beyond a purely commercial model to one of association that sets it apart. Consequently, the financial user is also an integral member of the institution, not merely a client, resulting in a relationship distinct from the standard of traditional banking.
However, in contractual practice, many cooperatives have replicated models typical of the traditional financial system, characterized by adhesion contracts whose conditions are predisposed to a margin in favor of the institution where the margin of benefits to members may be very limited.
Within the Ecuadorian legal framework, the Organic Monetary and Financial Code, the Organic Law of Popular and Solidarity Economy, and regulations issued by the Financial and Monetary Policy and Regulation Board and the Superintendency of Popular and Solidarity Economy (SEPS) recognize the need to protect financial consumers. However, they do not explicitly develop a detailed regime for controlling abusive clauses in the cooperative sector, which creates a significant area for legal interpretation.
In this context, clauses exonerating or limiting the Cooperative’s liability for risks arising from technological failures or fraud, penalties without a standardized calculation criterion, powers to unilaterally modify contractual conditions, among others, are identified; which imply violations of the member’s informed consent and implicit waivers of rights that restrict access to complaint mechanisms before the SEPS, which by its nature may affect effective protection.
The analysis of these provisions reveals a critical point of contention between the classical logic of contract law and the principles inherent in cooperativism. Therefore, the indiscriminate use of pre-drafted clauses, without adequate consideration of their impact, can lead to a distortion of the cooperative bond, bringing cooperatives closer to the structures of commercial banking.
In this entire scenario, where replicating the contractual structure of traditional banking generates legal risks and compromises the very essence of the popular and solidarity economy, it is necessary to rethink the regulatory and contractual approach. On the one hand, the SEPS (Superintendency of Popular and Solidarity Economy) could develop more specific guidelines to identify and limit abusive clauses, thus strengthening member protection; and on the other hand, the cooperatives themselves must adopt a contractual compliance perspective aimed at guaranteeing the balance of rights and obligations, transparency, and proportionality in their legal instruments, aligned with the principles of the popular and solidarity economy.
