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Podatki o zadevi
- Nacionalna ID: Hight Court, Decision I Cp 2266/2019
- Država članica: Slovenija
- Splošno ime:N/A
- Vrsta odločbe: Sodna odločba v pritožbenem postopku
- Datum odločbe: 12/02/2020
- Sodišče: Višje sodišče v Ljubljani
- Zadeva:
- Tožnik:
- Toženec:
- Ključne besede: refund, unfair terms, seller, consumer

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Členi direktive

Unfair Contract Terms Directive, Article 3
Uvodna opomba

ECLI:SI:VSLJ:2020:I.CP.2266.2019

The contractual agreement between broker and consumer (the subject of which is the consumer’s real estate that he wants to sell), according to which the broker obtains the right to reimbursement of costs incurred on the basis of the concluded contract on real estate brokerage, is not in conflict with the cogent norms of Real Estate Agencies Act (hereinafter: ZNPosr). The same applies even if the broker has not found a contracting party for the consumer and because of this, the consumer has terminated the contract. Such an agreement is also permissible in accordance with the general rules of the Code of Obligations on the brokerage contract, which also apply in the alternative under ZNPosr. Therefore, the contractual condition in question is not unfair on the basis of Article 24 of Consumer Protection Act and consequently, it is also not null and void on the basis of Article 23 of Consumer Protection Act.

Relevance: The case law explains the conditions under which the consumer is obliged to pay the costs of the real estate agent even when the brokerage contract is terminated by the consumer and when the agent has not found a contractual party for the consumer (seller). The case law also emphasises why such a contractual term is not considered unfair in the meaning of Directive 93/13/EC.
Dejstva

The plaintiff (real estate agent) entered into a contract with the defendant (the consumer and the seller of real estate) for mediation in the sale of the consumer’s real estate. It is a contract by which a real estate company undertakes to endeavor to find a third party who will negotiate with him for the conclusion of a specific contract, the subject of which is real estate, and the consumer undertakes to pay the real estate company for mediation if the contract is concluded. However, the defendant terminated the brokerage contract and did not want to pay the costs of the real estate agent incurred up to the moment of termination. Therefore, the plaintiff (real estate agent) is suing the defendant (the consumer) and demands the defendant pay the costs for his services in accordance with the price list and general terms and conditions received by the defendant upon signing the contract.
Pravna zadeva

Is the consumer (seller of the property) obliged to pay the costs of the real estate agent even when the brokerage contract is terminated by the consumer and when the agent has not found a contractual party for the consumer (seller)? Or is this an unfair contractual term under Directive 93/13 / EC?
Odločba

The Court of Second Instance points out that the position of the Court of First Instance that Article 5 of the Real Estate Brokerage Contract (hereinafter: Contract) is contrary to the provisions of Article 24 of the Consumer Protection Act, is incorrect. The provision of Article 5 of the Contract stipulates that a real estate agent has the right to reimbursement of costs if the client terminates the brokerage contract, in the amount of advertising and brokerage costs, which are charged on the basis of the broker's price list. The Court found that the plaintiff claimed costs higher than the 2% commission to which the applicant would have been entitled in the event of success (the actual sale of the defendants' property) under ZNPosr. The contractual condition, according to which the plaintiff would receive a higher payment than if the contract had been concluded through her mediation, meaning it would have been more favourable for the plaintiff not to enter into the contract, was declared unfair on the basis of Article 24 ZVPot. The unfair provision (in opinion of the First Instance Court) was found to be null and void on the basis of Article 23 of the ZVPot.

The Court of Second Instance emphasises, however, that such a contractual agreement is not in conflict with the cogent norms of ZNPosr. Such an agreement is also permissible in accordance with the general rules of the Code of Obligations on the brokerage contract. Consequently, the Court of First Instance erred in law in finding that this contractual agreement is unfair. The Court of First Instance correctly found that Article 848 of the Code of Obligations allows for such cost-sharing arrangements. However, the Court of First Instance wrongly concluded that these are additional costs defined in paragraph 2 of Article 25 of ZNPosr and for which the real estate agency can receive payment in the amount of actual costs only if this has been specifically agreed between the parties. Furthermore, the Court of Appeal emphasises that insofar as the plaintiff performed his work correctly, and in doing so he incurred the usual costs or those additional costs that have been explicitly agreed, the defendant (consumer) is obliged to pay these costs in accordance with the price list if he was correctly informed and if he withdrew from the contract.

The Court committed a substantial violation of the provisions of the procedure under point 8 of the second paragraph of Article 339 of the Contentious Civil Procedure Act, as it did not make a substantiated evidentiary proposal by which the party wishes to prove a legally important fact.

Celotno besedilo: Celotno besedilo
Povezane zadeve

Zadetki niso na voljo
Pravna literatura

Zadetki niso na voljo
Zadetek

The appeal is upheld, the judgement under appeal is set aside and the case is remitted to the Court of First Instance for a new trial. The decision on the costs of the appeal proceedings is reserved for the final decision. An appeal is allowed against this decision.

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Celotno besedilo