Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 6, 1.

An infringement of the provisions concerning unfair contract terms is sanctioned with relative nullity. As a result the court cannot invoke the nullity of an unfair term on its own motion.
The contractual term by which the seller excludes liability for the performance of a principal obligation of the contract, creates a clear and manifest imbalance in the meaning of Article 31 of the Act of 14 July 1991.

On 21/01/1991, a bank employee transfers an amount of 488.624 Belgian francs from one account to another. The request to transfer this amount is not done with the standardised form, but by letter. The account holder had sent similar letters in the past, requesting money transfers.

The signature on the last letter is a perfect imitation of that in previous letters, but the last letter contains several spelling errors and is drafted in poor French, unlike the previous letters.

The account holder denies that he has written the letter requesting the money transfer. A criminal investigation confirms this claim. The account holder claims that the bank committed a contractual error by transferring the money without being ordered by him to do so. He initiates proceedings against the bank to reclaim his money and in any case wants to be compensated also for additional damages resulting from the transfer.

The general conditions of the bank, which are incorporated in the contract between the bank and the account holder, contain the following clauses:
1) On the subject of the verification of the signature, the bank is only liable if it commits a grave error.
2) The account holder bears full responsibility for the consequences resulting from the use of incomplete, incorrect or unauthentic documents for which the bank, when the documents are drafted in a foreign country, does not assume liability concerning their authenticity, validity, translation or interpretation.
On the basis of these clauses, the bank argues that it is not liable for the faulty money transfer.

According to the bank, aforementioned second clause implies that the bank only has to verify the signature and the account balance when making a money transfer and bears no further liability.

In contrast, the court rules that by limiting its responsibility to the control of the signature and the account balance, the bank deprives the contract of its main subject matter.

The court finds consequently that a clause which deprives the contract of its main subject matter creates a manifest imbalance between the rights and obligations of the parties, and is therefore unfair on the basis of Article 31 TPA.

The court thus concludes that the bank cannot invoke the second clause to deny its liability, since that clause is unfair and therefore null.

By executing the order without noticing a number of suspicious elements which might reveal the wrongful origin of the order, the bank committed a contractual error and is therefore liable for the damages so caused to the account holder.

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