Case Details


Case Details
National ID 3K-3-480/2009
Valstybė narė Lietuva
Common Name link
Decision type Kita
Decision date 09/11/2009
Teismas Supreme Court of the Republic of Lithuania
Tema
Ieškovas
Atsakovas
Raktažodžiai

Unfair Contract Terms Directive, Article 5

No headnotes available for this decision.
The question raised was whether in case when the free day is shifted from the weekend (e. g. Saturday) to another day of the week, that Saturday should be regarded as a working day, if the parties to the contract have not agreed upon such a transfer possibility. According to the facts of the case the defendant provided mobile internet services on the basis of a contract, concluded between the plaintiff and the defendant. In service providing terms, placed in the internet, it was stated that the consumer was entitled to unlimited use of the internet in the evenings, weekends and holidays. Plaintiff used the internet service on the 1st of July, 2006, which was Saturday, considering that internet service is unlimited (free of charge), but the defendant submitted a bill for 317 LTL for that day, i. e. applied a rate of a working day. The defendant argued that according to the 22.12.2005 Government decision No 1413 „On the transfer of free days in the year 2006“, the free day from 01.07.2006 (Saturday) was shifted to 07.07.2006, so 01.07.2006 (Saturday) must be regarded as a working day.
According to the facts of the case, the plaintiff (natural person), acting for purposes which are outside his trade, business or profession concluded a mobile internet service contract with a supplier in a way of accession. For this reason the lower instance courts reasonably qualified this contract as a consumer contract. When interpreting consumer contracts, not only general contract interpretation rules (Articles 6.193-6.195 Civil Code) should be applied, but also a special rule that the interpretation most favourable to the consumer shall prevail (so called contra proferentem rule) (Article 6.193 paragraph 4; Article 6.188 paragraph 6 Civil Code).
One of the aspects of the compliance of consumer contract terms with the general criteria of fairness is the assessment whether they are transparent, i. e. are the contract terms clear and understandable to consumers and whether the supplier provided the consumer with all information, necessary for the conclusion of a contract. Not transparent contract terms cannot be considered as fair, because the consumer, who does not understand the terms of the contract or does not have all relevant information, cannot make the appropriate decision. Requirement that consumer contract terms must be drafted in plain, intelligible language and that the consumer should be given the possibility to analyse these terms is transposed to national law by Article 6.188 paragraph 6 of Civil Code.
After evaluation the contents of the lower instance courts‘ procedural decisions, the court concluded that the courts when interpreting terms of the contract, concluded between the plaintiff and the defendant, properly applied Article 6.193 paragraph 4 of Civil Code, according to which contract terms in all cases must be interpreted in a way most favourable to consumers and parties to the contract who concluded the contract in a way of accession. In the contract at issue no term providing that weekend days, when free days are transferred to other days of the week should be recognized as working days was included, what is more the defendant did not inform the plaintiff about that. According to this the mobile internet services contract term concerning the unlimited use of the internet during the weekends can not be interpreted as meaning that the defendant has a right to charge the services using the rate of the working days on weekends, when the days off from weekends are transferred to other days of the week and that weekend day is considered as a working day.
The court concluded that lower instance courts applied the material law norms properly and reasonably stated that the defendant performed the contract in an improper way, i. e. unduly applied working day rates during the weekend.
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