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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