Jurisprudencia

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.

A term that, regardless of the reasons of the recipient, imposes a penalty clause when withdrawing from a contract for services, is contrary to the requirement of the good faith and causes a significant imbalance to the detriment of the consumer. This clause must therefore be declared “unfair” and void.

The plaintiff signed a contract for legal services with the defendant. The contract included the following term: “if under any circumstance D. Anselmo [the defendant] would decide to terminate the contract, the fee will remain a 15% of his share of the inheritance”. According to this, when the defendant chose to terminate the contract, the plaintiff claimed the amount of 239.366 euros. The defendant filed a counterclaim in which she demanded to declare “unfair” and void the referred clause. On December 28th. 2006, the Court of First Instance ordered the defendant to pay 66.933 euros, but at the same time considered void part of the term. On May 28th. 2007 the Appeal Court increased the sum to pay up to 158.631 euros and confirmed the nullity of the term.

“It is obvious that the agreement heavily penalises the recipient of the service because the provider’s will (...) impedes the client to unilaterally withdraw, limiting its rights of defence”. The client is forced to pay a disproportionate compensation [penalty clause] regardless of the reasons or time of the withdrawal and “therefore the term must be considered ‘unfair’ due to lack of reciprocity, which causes a significant imbalance in the parties’ rights”.

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