Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal, The Hague, 18 December 2018
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 18/12/2018
    • Gerecht: Court of Appeal, The Hague
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: Cancellation, cancellation costs, two-sided standard contract terms
  • Richtlijnartikelen
    Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, ANNEX I, 1., (e)
  • Koptekst

    ECLI:NL:GHDHA:2018:3572

     

    The consumer is obliged to pay the costs of cancellation, which amount to 30 % of the selling price. The Court must assess whether this clause is unfair, on the basis that it was not negotiated between the parties, if not imposed in the contract by the defendant. The Court considers that the fact that the Consumentenbond withdrew consent to use these terms does not mean that the interests of the consumer have not been safeguarded.

  • Feiten
    On 12 February 2016, a consumer purchased a kitchen for the amount of € 15,500.
  • Juridische kwestie

    A consumer purchases and then cancels the purchase of a kitchen. Is the consumer required to pay the cancellation costs, which amount to 30 % of the sales price?

    How this is influenced by the fact that the Consumentenbond (the largest consumer organisation of The Netherlands) had agreed to the use of the set of standard contract terms on the unfairness test.

  • Uitspraak

    According to the applicable standard contract terms, the consumer is required to pay a fixed amount of 30 % of the sales price for cancellation of the contract if they do so at a time when the seller has not yet informed the consumer that the goods are ready for delivery(and a higher amount must be paid if the cancellation occurs at a later moment).

    On 15 February 2016, the consumer cancels the contract. On 30 June 2016, the seller claims payment in the amount of € 4,597,50. The consumer challenges the fairness of the term regarding the costs for cancellation, arguing that it leads to an unfair award for the seller.

     

    The Court of Appeal, however, holds the term to be fair as the seller has demonstrated that in the preceding 5 years the average gross profit made from the sale of kitchens was over 30 %. In the absence of the term, the seller would be entitled to claim specific enforcement of the contract or damages on the basis of the loss of profit, which would be equal to the amount claimed, therefore the term does not make the consumer worse off than under the otherwise applicable rules. Moreover, the term is in agreement with the two-sided set of standard contract terms applicable in the branch of trade, the content of which was negotiated with the Consumentenbond. That the Consumentenbond in 2017 ended its consent to the use of this term does not mean that the consumer’s interests had not been safeguarded when the terms were established, and the contract was concluded.

    URL: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:3572

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of Appeal, however, holds the term to be fair as the seller has demonstrated that in the preceding 5 years the average gross profit made from the sale of kitchens was over 30 %.