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Case Details

Case Details
National ID 0435484
Estado-Membro Portugal
Common Name link
Decision type Outro
Decision date 11/11/2004
Tribunal Tribunal da Relação
Assunto
Requerente
Requerido
Palavras-chave

Unfair Contract Terms Directive, Article 1, 1.

1. The communication of contract terms as required under article 5 of Decree 446/85 is a consequence of the bona fides principle.
2. The consumer does not carry the burden of proof for demonstrating a failure to communicate properly and regularly as per article 5, but rather the party who drafts the contract terms must prove that this communication occurred.
As a result of a car accident, the injured party took legal action against the insurance company to obtain payment of the sums due on the basis of the unlimited liability insurance contract.
In its defence, the insurance company invoked article 37 indent c) of the insurance policy, under which cover is excluded for accidents where the vehicle is being driven by a person without a driving licence. On the date of the aforementioned accident, the driver did not have a licence.
The injured party argued firstly that this term was not communicated to him as per article 5 of Decree 446/85, secondly that it was unfair, and thirdly that, even if it were not viewed as such, it should be interpreted on the basis of restrictions (ie that the exclusion only applied where the insurer knew or agreed that the vehicle was being driven by a person without a driving licence).
The central question for the court was which party carried the burden of proof for demonstrating compliance with the duty of communication. Given the importance of proper communication of the contract terms as regards the consumer’s ability to act wholly autonomously and exercise his free will in entering into the contract, the court also viewed this duty as being a consequence of the bona fides principle. The duty laid down in article 5 of Decree 446/85 is merely an extension to the standard terms and conditions of a contract of what was already stipulated in the Civil Code (articles 227 and 762). This requires parties to respect the bona fides principle “during contract negotiations, conclusion and performance”.
The question of which party carries the burden of proof has a legal remedy. Under article 5 no.3 of Decree 446/85 (and article 342 of the Civil Code), it is the contractual party who subjects the other party to standard contract terms who carries the burden of proof for demonstrating that there has been proper and adequate communication. This results from the fact that the contractual party wishing to invoke the terms carries the duty of communication. Furthermore, article 342 of the Civil Code stipulates that the party against whom a right has been invoked carries the burden of proof for demonstrating any facts precluding the exercising of this particular right. In the court’s view, communicating article 37 indent c) of the standard terms and conditions precluded the plaintiff from exercising his right. As such, the party wishing to invoke the term carried the burden of proof. Since Decree 446/85 applied in this case, it was necessary to prove not only the existence of the term, but also that it had been properly communicated (as per article 5).

[Abstract drafted by Ana Raquel Moniz]
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