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sv_Case Details

sv_Case Details
sv_National ID Svea Court of Appeal, Patent and Market Court of Appeal, Judgement PMT 5886-18
Medlemsstat Sverige
sv_Common Name N/A
sv_Decision type sv_Court decision in appeal
sv_Decision date 16/04/2019
Domstol Svea Hovrätt, Patent- och marknadsöverdomstolen
Nyckelord Unfair terms, terms and conditions, standard contract, imbalance between the rights of the parties

Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, Article 4

A term in a standard car rental agreement providing for strict liability of the consumer in case of damage or loss of the vehicle, puts the consumer in a worse position than the one they would otherwise be in if national dispositive law were applied, in which case the consumer is liable only if it is not proven that they have not been negligent. If, at the same time, the agreement does not contain any beneficial terms that could outweigh such a disadvantage, the term in question is unfair according to art 3 of the Act (1994:1512) on Contract Conditions in Consumer Relationships.

Relevance: This is a final judgement without possibility for appeal to the Supreme Court

Biluthyrarna Sverige (defendant), a trade organisation for car rental traders worked out some general rental terms which have been used by nearly all its members. In 2006, the defendant changed one of the terms related to the liability of the lessee/consumer. The new term provided for strict liability in case of damages or loss of the vehicle. The national dispositive law that would apply in the case the term did not exist provided for a rebuttable presumption of fault and the consumer would not be found liable if they could prove that the damage did not happen because of negligence. The Consumer Ombudsman (plaintiff), therefore, filed a claim at the Court of First Instance (Patent and Market Court) requesting it forbid the defendant from recommending the term in question to its members, which the Court of First Instance did. The defendant filed an appeal at the Patent and Market Court of Appeal.

Is the legal position of consumers undermined in a sufficiently serious way by having a strict liability provision related to damages and loss of the rented vehicle in the general terms of car rental agreement?

A contract term in a standard car rental contract providing for strict liability for damage or loss of the vehicle deviates from the liability the consumer would have according to national dispositive law. Additionally, after an overall assessment of the rights and obligations of the parties provided for by the contract, it seems that the disadvantages of the term in question are not offset by any other terms that may be beneficial to the consumer. For these reasons, and based on the preparatory work for the Act (1994:1512) on Contract Conditions in Consumer Relationships where it is stated with regard to article 3 that a term is unfair if it deviates from dispositive law, as well as the interpretation of the Unfair Terms Directive by the CJEU, according to which national dispositive law must be taken into consideration when assessing whether there is a significant imbalance to the detriment of the consumer, the term in question is unfair.

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The Court of Appeal upheld the judgement of the First Instance Court that the term in question is unfair because it creates a significant imbalance to the detriment of the consumer while at the same time there being no other terms in the contract to offset the detrimental consequences of this term.