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Case Details

Case Details
National ID 105.005.956/01
Member State Netherlands
Common Name link
Decision type Other
Decision date 10/05/2011
Court Gerechtshof (Appellate court, Gravenhage)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 3, 3.

Contractual penalty clause that sets the penalty per month higher than the amount of monthly rent is not considered to be unfair just on that basis.
As of the 1st of July 2004 consumer rented an apartment for the minimum duration of one year for €1050 a month, including costs. The consumer sublet the apartment to another party, who produced marihuana in the apartment, which caused damage to the place. The landlord terminated the contract by letter of 14th of February 2005. The landlord demanded from the consumer unpaid rent, costs of reparation and of rebuilding the apartment, penalty fees, lost income, etc. One of the main points of the dispute was as to the application of standard contract terms of the landlord, pursuant to which he had a right to penalty fee ca. €10.800.
The consumer claimed in the proceedings that the contractual penalty set in standard contract terms should be regarded as unfair due to the high costs thereof. The court states that the contractual penalty does not figure on the grey or black list of unfair contract terms in Dutch law (art. 6:236 and 6:237 BW). Since a contractual penalty could be seen as a clause which puts on a consumer an obligation to pay an excessive compensation in case of non-performance by consumer of his contractual obligation, which is listed in the Annex of the Directive, the court needs to consider whether such a provision is unfair under circumstances of the given case. The court concludes that the clause is not unfair, since in comparison to the price of the rent - €1050 per month in total, a contractual penalty of ca. €45 per day of subletting the apartment, comes up to penalty of €1350 per month which is not much higher than the rent, seems reasonable.
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