Jurisprudenţă

  • Detalii privind cazul
    • ID național: Appeal against judgement 517/09.04.2009
    • Statul membru: România
    • Denumire comună:N/A
    • Tipul de decizie: Altele
    • Data deciziei: 07/01/2010
    • Instanţa: Curtea de Appel
    • Obiect:
    • Reclamantul:
    • Pârâtul:
    • Cuvinte-cheie: Jurisprudenţă România română
  • Articole din directivă
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 3, 3.
  • Notă preliminară
    IV. Head notes:

    Between the recurrent and the respondent there was an “Authorization” concluded which has the value of a contract regarding the lucrative purposes of the musical work. The recurrent invoked that the mentioned “Authorization” was a standard contract written in advance, contrary to the provisions of the articles 2 and 4 of Law no. 193/2000 on abusive clauses of contracts concluded between traders and consumers, argument which the court removed.
  • Fapte
    According to the nonexclusive authorization to use musical work in lucrative purposes of July 31st 2008 concluded between parties, the defendant undertook the obligation to pay a remuneration of 8.5% of the collections of the “N.B.” concert for August 2nd 2008. By means of the bill no. 25483 of August 6th 2008 the defendant paid 3570 lei representing an advance payment. As it came out from the statement of collections the defendant collected 233411, 76 lei, meaning a sum owed to the claimant of 20039, 58 lei. According to the contract between parties, if the payment is delayed more than 10 days, 50.000 penalties are owed. The first court decided that the claims of the claimant are grounded and also obliged the defendant to pay judgment fees in sum of 2.419 lei.

    Against this sentence, the defendant filed recourse invoking the breach of procedural rules, the breach of the right of defense of the recurrent, the principle of contradictory and also of the equality of the parties within the trial. Also the recurrent sustains the fact that the “Authorization” concluded between parties is an administrative act, argument which the court rejected since none of the signatories of the above mentioned authorization is a public authority.

    Another argument invoked was that the “Authorization” is a standard, in advance written contract. According to Law no. 193/200 on abusive clauses of contracts concluded between traders and consumers “a contractual clause that was not negotiated directly with the consumer shall be considered abusive if, itself or together with other clauses of the contract, creates a significant imbalance detrimental to the consumer and in contradiction with the rights and obligations of the parties”. Also, article 2 of the same law states that “a contractual clause shall be considered as not being directly negotiated with the consumer if the clause was settled without offering the possibility to the consumer to influence the nature of the clause, examples being the standard contracts written in advance or the sale general conditions practiced by traders on the respective service or product market.” The recurrent also invokes the significant imbalance between the rights and obligations of the parties, fact which is not recognized by the court.

    The “Authorization” has a bilateral private law document nature and the recurrent gave its consent so that its repertory be used during the “N.B.” concert. The penal clause of the “Authorization” is compatible with this kind of convention, fact omitted by the first court. The re course court finds the claims and the observations of the recurrent ungrounded and obliges the latter to pay judgment fees.
  • Chestiune juridică
  • Hotărârea

    •?admitted the action
    •?obliged the defendant to pay judgment fees in sum of 2.419 lei.


    The second court (recourse) ruled as follows:

    •?rejects the appeal filed by the defendant – recurrent against the civil decision no. 517 of April 4th 2009, issued by the Bucharest Tribunal – 5th Civil Section
    •?settles that the arguments invoked by the recurrent: breach of procedural rules, the breach of the right of defense of the recurrent, the breach of the principle of contradictory and also the breach of the equality of the parties within the trial are ungrounded
    •?rejects the affirmation that the „Authorization“ is an administrative act
    •?obliges the recurrent to pay judgment fees in sum of 3750 lei

    Text integral: Text integral

  • Cazuri conexe

    Nu există rezultate disponibile

  • Doctrină

    Nu există rezultate disponibile

  • Rezultat