Rechtspraak

  • Bijzonderheden van de zaak
    • Nationaal ID: C06/303
    • Lidstaat: Nederland
    • Gangbare benaming:X v. Gebroeders BV
    • Soort beslissing: Overige
    • Datum beslissing: 12/02/2008
    • Gerecht: Gerechtshof
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden:
  • Richtlijnartikelen
    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.
  • Koptekst
    Contractual penalty clause fixing penalty of 50% of purchase price in case of cancellation of the contract by the consumer is unfair since it is not related to the damage or costs made.
  • Feiten
    A consumer visited a showroom of a kitchen company Gebroeders BV on the 14th of October 2004. She liked the show room kitchen presented to her, and discussed price and sale conditions with an employee. She signed an order form at the place that was pointed out to her by the seller, filling in her personal data on the form. It was added in hand writing: “Showroom kitchen Cage 34 € 3.800” and “25% pre-payment – rest by the picking up of the kitchen”. At the bottom of the order form it is mentioned that standard contract terms of the Centrale Branchevereniging Wonen are applicable to the contract. Delivery was to be expected in week 46. The consumer did not show up to pick up the kitchen in week 46 and refused to do so. Gebroeders BV terminated the contract in accordance with standard contract terms and demanded cancellation compensation in the amount of 50% of the purchase price.
  • Juridische kwestie
  • Uitspraak

    Firstly, the consumer claimed that she had never received standard contract terms at the moment of conclusion of the contract, which meant that should did not have a chance to read them and agree to their provisions. In such a situation a consumer may not be bound by standard contract terms, which follows from art. 6:233 BW implementing art. 3 of the Directive. Secondly, even if standard contract terms were applicable to the contract, then the provision in them that states that regardless of the damage that the business suffers, it is entitled to claim 50% of purchase price as compensation in case of cancellation should be seen as an unfair contract term. It would then constitute a pure contractual penalty. The court decides that since the professional seller did not prove that he had informed the consumer about the application of standard contract terms and specific provision on contractual penalty for cancellation of the order, and that provision seems to be unfair, in any case, it may not be enforced.

    Integrale tekst: Integrale tekst

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