Case law

  • Case Details
    • National ID: link
    • Member State: Belgium
    • Common Name:A.V.D.V. / L.D. ; C.A.
    • Decision type: Other
    • Decision date: 10/09/2003
    • Court: Hof van Beroep (NL)/Cour d'appel (FR) (Appellate court, Gent)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 4
  • Headnote
    A contract concluded outside the business premises, which does not mention the consumers’ right of cancellation is null. However, the nullity of the contract is not absolute but relative.
    As a result, the consumer is in a position to, explicitly or implicitly, confirm the invalid juridical act. This confirmation may flow from the consumers’ conduct after the contract has been concluded.
    Considering the protective nature of the legislation, an explicit or implicit confirmation of the invalid juridical act is to be interpreted restrictively.
  • Facts
    On 25/3/2000, appellants commission a real estate agent to sell their house. This contract is concluded at the home of appellants. The contract has a duration of four months, with a taciturn extension of four months if one of the parties does not terminate the contract by giving notice, at the latest, fifteen days before the end of the four month period. The contract does not mention a right to cancel the contract.
    On 26/11/2000 the real estate agent finds a buyer for the house. The appellants sign a sales contract with the buyers but here still was a mortgage on the house which was not yet paid off. The sale did not take place in the absence of the approval of the bank which granted the mortgage.
    On 25/6/2001, appellants sell their house without the help of the real estate agent, although the contract with the real estate agent was not terminated at that time.
    The real estate agent requests payment of the fee stipulated in the contract. The appelants are claiming that the contract is null because it does not mention their right to withdrawal from the contract.
  • Legal issue
    Article 88 of the Act of 14 July 1991 on trade practices and consumer information and protection (TPA) contains the obligation that a contract concluded outside the seller’s business premises must mention the consumer’s right to withdraw from this contract within seven working days. Not respecting this obligation causes the nullity of the contract.
    The court finds this nullity to be relative: the contract can be confirmed by actions of the consumer and hence can regain its validity in absence of any reference to a right of withdrawal. The court further points out that the protective nature of the legislation dictates that the consumers’ confirmation of a contract cursed with nullity must be interpreted restrictively.
    In the opinion of the court, there can be no doubt in the present case as to the will of the appellants to confirm the contract. They did not make use of the possibility to terminate the contract before the taciturn extension and they also signed a contract with the buyers brought in by the real estate agent.
    By committing these acts, the appellants confirmed the contract and rejected the benefit of the right to withdraw the contract.
  • Decision

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