Case law

  • Case Details
    • National ID: Legf. Bír. Gf. I. 32.236/2002. sz.
    • Member State: Hungary
    • Common Name:link
    • Decision type: Other
    • Decision date: 01/01/9999
    • Court: Magyar Köztársaság Legfelsőbb Bíróság (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 3, 2.
  • Headnote
    An arbitration clause in standard terms and conditions is an atypical contract term; in other words, it is not standard practice to include such a clause. Thus, an arbitration clause only forms part of the contract if the party using the clause informs the other contractual party about its existence before the contract is agreed and if the other party accepts the clause as part of the standard terms and conditions.
  • Facts
    In July 2000, the plaintiff and the defendant agreed a contract relating to a commission fee for the purchase of state bonds on the stock market. The plaintiff commissioned the defendant, inter alia, to purchase state bonds on the stock market. The contract referred to the defendant’s terms and conditions (drafted prior to the contract), which contained an arbitration clause.

    The defendant did not meet his contractual obligations, prompting the plaintiff to file a lawsuit against him.
  • Legal issue
    The Court of First Instance threw out the case before it even came to trial, ruling that it was not admissible. In giving reasons for the verdict, it explained that the two parties in the contract had agreed in the STCs that the arbitration tribunal had jurisdiction. As such, in accordance with the law, the tribunal had jurisdiction to arbitrate in the case.
    The plaintiff lodged an appeal against this ruling with the Court of Appeal (LB).
    In his submission, the plaintiff argued on the one hand that the lawsuit did not relate to the stock market transaction, but rather to the final payments between the two parties arising from this transaction. On the other hand, it should be noted that the arbitration clause contained in the STCs had not been part of the contract. A clause in standard terms and conditions containing anomalous arrangements on the remit of an arbitration tribunal is a provision that deviates from standard practice under § 205 paras 1, 3 and 5 of the Hungarian Civil Code (Ptk). As a standard contract term, it would only have become part of the contract if the defendant had explicitly made the plaintiff aware of it before the contract was agreed and the plaintiff had explicitly accepted the clause.
    The Supreme Court upheld the appeal. In pronouncing the verdict, the court explained that, according to the law, both parties would have to agree in writing that the arbitration tribunal had jurisdiction in case of dispute. In the case in question, both parties had established under point 6 of the contract that any questions not covered in the contract would be determined by the defendant’s standard terms and conditions and the relevant provisions in the Ptk. The terms and conditions contained an arbitration clause. The inclusion of STCs in a contract must be in accordance with the provisions that were newly incorporated into the Ptk by the 1997 Consumer Protection Act relating to the Directive on unfair terms, in particular with § 205 para 3. By signing the contract, the defendant had indeed confirmed that the arbitration clause formed part of the contract.
    According to case law in the Supreme Court, arbitration clauses are not viewed as standard provisions in commission-based transactions (see ruling BH 2001, 131). Under § 205 para 5 Ptk, the defendant would have had to explicitly inform the plaintiff of this clause that deviated from standard legal practice. Moreover, the plaintiff would have had to explicitly accept the clause. The defendant, as the party using the clause, carried the burden of proof for demonstrating that he had notified the plaintiff. However, he had never made any comment to suggest that this had happened.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result