Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal ’s-Hertogenbosch, Judgement 200.233.769_01
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Beslissing hooggerechtshof
    • Datum beslissing: 18/02/2020
    • Gerecht: Gerechtshof ’s-Hertogenbosch
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: nature of the trader, misleading omissions, information obligations
  • Richtlijnartikelen
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7 Consumer Rights Directive, Chapter 1, Article 2 Consumer Rights Directive, Chapter 1, Article 2 Consumer Rights Directive, Chapter 3, Article 6, 1., (o) Consumer Rights Directive, Chapter 3, Article 6, 1., (p)
  • Koptekst

    ECLI:NL:GHSHE:2020:589


    A consumer buys his daughter a horse for dressage. The consumer subsequently agrees with the defendant, a person who is engaged in the training of dressage horses, upon the stabling and training of the horse (‘the training and stabling contract’). Later, that person sells a horse truck to the consumer. Almost a year later, as the distance between the place where the daughter goes to school and the place where the stabling contract was performed proved to be too long, the daughter stopped being trained by the defendant. The horse and truck were transferred to another stable near the daughter’s school. On 4 December 2015, the consumer’s agent sent a letter to the defendant on the consumer’s behalf. In it, the defendant was summoned to pay € 33,850, namely € 32,000 for the sales price of the horse truck to be repaid and € 1,850 with regard to the periods during which the consumer had not made use of their rights under the training and stabling contract.

    The Court of Appeal holds that with regard to the sales contract, the defendant cannot be seen as a trader. It has not appeared that the defendant sells horse trucks on a commercial or regular basis. The defendant substantiated that it operates a horse stud farm and that the sale of horse trucks is not part of its business activities. Regarding the training and stabling contract, the Court of Appeal finds that the defendant did not commit a misleading omission by not mentioning that in the case the contract would be prematurely terminated, the consumer would not receive back the remaining instalments that had been paid in advance as this information cannot be seen as ‘essential information’ within the meaning of Article 6:193d (2) or 6:193e Dutch Civil Code. Moreover, since the contract mentions the duration of the training and stabling contract and the period for which the contract applies, the defendant did not breach the information obligations under Article 6:230m (1) (o) and (p) BW either.

  • Feiten

    The consumer’s daughter is interested in dressage. The consumer bought a horse for her. In 2014, the consumer’s daughter moved to the Netherlands to receive training in dressage with the defendant in this case, who is active in the horse industry. Among other things, she is engaged in the training of dressage horses. In December 2014, the parties concluded a contract for, among other things, the stabling and training of the horse (‘the training and stabling contract’). On 28 December 2014, the defendant sent an invoice in this respect for an amount of € 11,200 for the whole year of 2015. The consumer paid that invoice. In June 2015, the defendant sold a horse truck to the consumer for € 32,000 (hereinafter: the sales contract). From July 2015, the daughter attended an international school. Due to the long distance between the place where the stabling contract was performed and the place where the daughter went to school, she stopped being trained by the defendant in October 2015. The horse and truck were transferred to another stable near the daughter’s school.

    On 4 December 2015, the consumer’s agent sent a letter to the defendant on the consumer’s behalf. In it, the defendant was summoned to pay back the sales price for the sale of the horse truck (€ 32,000) and the advance for the periods not used under the training and stabling contract (€ 1,825).

  • Juridische kwestie

    Is the defendant a trader within the meaning of the UCPD and the CRD with regard to the sales contract? Did the defendant commit a misleading omission by not mentioning at the moment of conclusion of the training and stabling contract that the consumer would not receive back the advance if they were to prematurely terminate that contract? Did the defendant comply with their information obligations regarding the minimum duration of the training and stabling contract under Article 6:230m (1) (o) and (p) BW?

  • Uitspraak

    The Court of Appeal finds that in determining whether a person must be regarded as a trader under the UCPD and CRD, it must be ascertained whether that party acts in the course of their trade, business, craft or profession, whereby it is important whether the contractual relationship or the trading practice forms part of the activities carried out professionally. This should be assessed by the court in light of all the circumstances of the case, based on a "case by case" approach (cf. CJEU 4 October 2018, ECLI:EU:C:2018:808). In this case, with regard to the sales contract, the consumer did not state sufficient concrete facts and circumstances that could lead to the conclusion that the defendant acted as a trader in the relevant sense here when entering into the sales contract. The mere assertion of the consumer that the defendant sold the horse truck on a commercial basis (with an invoice) is insufficient for that purpose, in the opinion of the Court of Appeal. It did not appear that the defendant sells horse trucks on a commercial basis. The defendant substantiated that it operates a horse stud farm, and that the sale of horse trucks is not part of its business activities. The conclusion on the basis of the foregoing is that the defendant did not act as a trader in the relevant sense here when entering into the sales contract.

    With regard to the training and stabling contract, the Court of Appeal finds that insofar as the defendant may be considered a trader, the defendant did not commit a misleading omission by not mentioning that in the case the contract was prematurely terminated, the consumer would not receive back the remaining instalments that had been paid in advance but had not been enjoyed as this information cannot be seen as ‘essential information’ within the meaning of Article 6:193d (2) or 6:193e Dutch Civil Code. Moreover, since the contract does mention the duration of the training and stabling contract and the period for which the contract applies, the defendant did not breach the information obligations under Article 6:230m (1) (o) and (p) BW either.

    URL: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHSHE:2020:589&showbutton=true&keyword=ECLI%3aNL%3aGHSHE%3a2020%3a589

    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of Appeal confirmed the Court of First Instance’s decision and dismissed the consumer’s claims.