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Case Details

Case Details
National ID 07B4617
Estado-Membro Portugal
Common Name AA S.A. v. BB
Decision type Outro
Decision date 06/03/2008
Tribunal Supremo Tribunal de Justiça
Assunto
Requerente
Requerido
Palavras-chave

Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 6, 1.

According to the regulation on unfair terms in contracts (general contractual clauses), the clauses which were inserted in a contract after the contractor has assigned it are considered excluded of the contract (DL 446/85, art. 8, lit. d)), but the contract itself subsists and is subject to subsidiary rules applicable to the case (DL 446/85, art. 9 para 1).
The company A S.A. and BB made a loan agreement for the purchase of a motor vehicle. The amount borrowed by A to BB should be paid in 60 installments. The conditions for interests due to default (“exigência da mora”) and penal clause are provided on the back of the contract, without the contractor’s signature, under the title “general conditions”. BB failed to pay from the 10th installment and then delivered the motor vehicle to A, so that A could sell it in order to subtract the obtained value out of the debt After the sale of the motor vehicle A notified BB to proceed to the payment of amounts related to delay and penal clause. BB affirms to disregard the “general conditions”, because as the document was signed, the contract only had the identification of the good financed, the financing conditions, as well as contractual protection and guarantees. However A. states that those “general conditions” were already inserted on the back of the contract as it was signed by BB, so that BB knew about its content
The Court decided that the clauses in respect to “special conditions” as foreseen in the contract are to be understood as general contractual clauses (standard terms) in the meaning of art. 1 DL 446/85. Furthermore art. 8 DL 446/85 says that the clauses which were inserted in a form after the contract parts have assigned it are to be considered excluded. The aim of this disposition is to avoid a fictitious, virtual or apparent acceptance of the clauses not being minimally assured, in this case, that the contractor has read or even had any prior contact with the clauses that were put in a different place – although very close – than the place where he signed. In this case the so-called special conditions were printed on the back where no signature of the contractor is provided. Such clauses are not enforceable, as they are considered as inserted into the contract only after the contractor signed it (DL 446/85, art. 8). Apart from these clauses, the contract is valid (DL 446/85, art. 9 para 1), so that rules of Civil Code and special legislation are applicable to the issues of delay and penal clause.
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