Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal Amsterdam, Judgement 200.252.725/01
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 03/09/2019
    • Gerecht: Gerechtshof Amsterdam
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: unfair term, termination clause, clause presumed to be unfair
  • Richtlijnartikelen
    Unfair Contract Terms Directive, Article 3, 1.
  • Koptekst

    ECLI:NL:GHAMS:2019:3235

    A non-public school offers a study programme to become a doctor's assistant. The applicable standard contract terms provide that if the student cancels after the start of the study programme, but no more than 6 weeks after the start, 40% of the tuition fee and 100% of the costs of teaching materials are due. When the student cancels their participation within this time frame, the school invokes the contract term allowing it to charge a termination fee for a total amount of € 2.285,00, consisting of € 1.971,00 for 40% cancellation costs, € 219,00 for learning materials and € 95,00 for an online booking package (annual licence). The Court of Appeal established that the term is presumed to be unfair under Art. 6:237(i) Civil Code, unless the amount would be a reasonable compensation for the school’s loss or loss of profit. Since the school did not appear on appeal and did not express an opinion on the unfairness of the term in first instance, even though it was given the opportunity to do so at the interlocutory judgement of the District Court, the presumption has not been refuted and the term is, therefore, to be found unfair.

  • Feiten

    Capabel, a non-public school, offers a study programme to become a doctor's assistant. A consumer registers online on 31 May 2016; the registration was confirmed by e-mail on the same date. On 15 June 2016, the consumer signed a contract, which includes a reference to standard contract terms. Art. 9 thereof indicates that if the student cancels after the cooling-off period has elapsed, they will owe at least the registration fee. If they do so after the start of the study programme, but no more than 6 weeks after the start, 40% of the tuition fee and 100% of the costs of teaching materials are due. The training programme started in August 2016. In an e-mail to Capabel dated 7 November 2016, the student informed the school that she had to drop out of school for financial and health reasons and that she could not afford to pay the costs of the programme. In an e-mail of the same date, Capabel confirms the cancellation of her participation. Out of leniency, it processes the cancellation with retroactive effect from 26 September 2016, the date on which Capabel had had a telephone conversation with the student’s mother. It then invokes the clause allowing it to charge a termination fee for a total amount of € 2.285,00, consisting of € 1.971,00 for 40% cancellation costs, € 219,00 for learning materials and € 95,00 for an online booking package (annual licence).

  • Juridische kwestie

    The question is whether the termination clause is unfair.

  • Uitspraak

    The termination clause provides that when the student terminates within 6 weeks from the start of the programme, 100% of the costs of the teaching materials shall be owed. Such clause is presumed to be unfair under Art. 6:237(i) Civil Code, unless the amount would be a reasonable compensation for Capabel’s loss or loss of profit. Since Capabel did not appear on appeal and did not express an opinion on the unfairness of the term in first instance, even though it was given the opportunity to do so at the interlocutory judgement of the District Court, the presumption has not been refuted and the term is, therefore, found to be unfair.

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of Appeal finds the termination term to be unfair. The decision of the District Court is voided and the claim for payment of the termination fee is dismissed.