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

A contractual clause requiring a buyer of timeshare rights who is exercising his statutory right to withdraw from the contract to pay an amount exceeding the costs necessary to conclude the contract actually borne by the trader is an unfair contractual clause.

The two parties concluded a timeshare contract which contained a clause requiring the buyers to pay an amount of £630 if they withdraw from the contract within the statutory 10 days (Article 6.1 of the Act of 13 July 2000 on the protection of the purchaser of the right to use a building or a flat in a specified period each year). The buyers withdrew from the contract within the time limit, but refused to pay £630, claiming that the amount was too high and did not reflect the true costs of concluding the contract. In fact, the traders never truly documented these true costs, and the amount of £630 seemed random and arbitrary. The Court for the Protection of Competition and Consumers held that the clause demanding £630 was an unfair contractual clause expressly contravening Article 385.3 para. 17 of the Civil Code, which provides that a clause which requires a consumer who withdraws from a contract to pay a strikingly high financial contractual penalty or to lose a deposit which was very high, is unfair. According to the Court, what the traders referred to as the ‘costs of making the contract’ was indeed such a contractual penalty, and in this case it was much too high (amounting to 28% of the total price). The Court of Appeal confirmed this decision. The Supreme Court also agreed that the requirement was an unfair contractual clause, but did not follow the line of reasoning of the two other Courts.

The right to withdraw from a timeshare contract is a statutory right, granted by Article 6.1 of the Act of 13 July 2000 on the protection of the purchaser of the right to use a building or a flat in a specified period each year. Article 7.2 of the same act allows the trader to demand that the buyer who withdraws from the contract reimburses the costs of making the contract. While the Supreme Court agreed that the amount of £630 was arbitrary and did not reflect the true costs of making the contract, it did not conclude that Article 385.3 para. 17 was breached. The amount was not, according to the Court, a contractual penalty: such penalties follow a breach of the contract and not withdrawal from it. Irrespective of the fact that Article 385.3 para. 17 could not be applied here, the Court concluded that the request to pay £630 was an unfair clause. Paragraph 17 of Article 385.3 was one of the elements of the list of clauses which may be unfair, but this list was by no means exhaustive. The Court applied the general fairness test, according to which any contractual clause is unfair if it contravenes good faith. It concluded that a clause which limited the consumer’s statutory cancellation rights by imposing a requirement to pay a very high amount of money was unfair.

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