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Case Details

Case Details
National ID I CSK 216/14
Member State Poland
Common Name link
Decision type Supreme court decision
Decision date 07/04/2015
Court Supreme Court
Subject
Plaintiff K. G.
Defendant Towarzystwu Ubezpieczeń S.A.
Keywords consumer, false information, insurance contract, misleading statements

Consumer Rights Directive, Chapter 1, Article 2, (1)

(1) The individual content and conclusion of agreements with consumers is a principle of consumer protection. Nevertheless, this does not mean that a consumer has a privileged position and is exempt from the obligation of due diligence in assessing the content of an agreement that he/she intends to conclude.
The plaintiff is a consumer who was using the services of an insurance agent. During 2011, he made several contributions. After subsequent periods every time paid out part of the money, and the rest invested again. Finally, the insurance agent was accused of committing fraud and the plaintiff did not receive his money. Moreover, the insurance company that was involved never obtained the sums of money paid by the plaintiff because it did not offer the type of investment that the agent proposed. The agent ran two offices, including one in the branch office of the defendant (i.e. the insurance company). As a result, plaintiff filed a lawsuit against the insurance company. The District Court ruled in favour of the plaintiff and awarded him PLN 100,000. As a result, the defendant appealed. The Court of Appeal accepted plaintiff's view that his money had been transferred to the defendant. According to the Court of Appeal, the customer could have perceived the agent's actions as legal and appropriate, and for this reason, the Court of Appeal accepted that the insurance company is liable for the damage caused to the plaintiff by the agent. The defendant submitted a cassation appeal to the Supreme Court.
The court examined several legal aspects of the insurance company's liability for its agents. But it is irrelevant in this context. The justification of the judgment includes some interesting conclusions concerning consumer protection which are presented below.

The court ruled that the plaintiff who performed a legal act with the defendant through the insurance agent was a consumer in the meaning of Article 22/1 of the Civil Code. Protection of the consumer, as the weaker part of the legal relations with entrepreneur, is provided for in Articles 385/1 to 385/3 of the Civil Code and in the Act on the Protection of Consumer Rights and Liability for Dangerous Products of 2 March 2000, which on 26 December 2014 was repealed by the Act on Consumer Rights of 30 May 2014 .

The court emphasized that consumer protection involves the individual consumer shaping the content and conclusion of agreements, but this cannot be understood as granting him/her a privileged position and exempting him/her from the obligation to exercise due diligence in assessing the content of the agreement which he/she intends to conclude. The court underlined that Article 22/1 of the Civil Code does not enumerate the characteristics of a person considered as a consumer, such as the required knowledge and experience in trade, degree of reason and criticism to receive commercial information. The determination that these attributes occures, is done during the application of consumer protection laws, taking into account the circumstances of each case. In general, a reasonable and critical consumer is considered to be a person who is able to properly understand the information that is addressed to him/her.

Based on the circumstances of the case, the court concluded that the plaintiff was a consumer and that the provisions of the insurance contract had been the subject of consultation. The court also stated that the plaintiff did not exercise the required diligence and care with regard to his own interests. The plaintiff frequently transferred large sums of money to the agent without proper acknowledgment and without checking the account to which the money should have been paid, and he also failed to receive information materials concerning payments, as well as failed to investigate the scope of agent's legitimacy. In the Court's opinion, these actions and omissions could be classified as reckless.

However, the court also said that conditions were clearly created to gain the confidence of the plaintiff and to convince him that the actions of the agent were legitimate. Nevertheless, the court stated that this does not release him from the duties of an objective assessment of the possibility of achieving unprecedented profits.

Ipso facto, the consumer is a weaker part of the legal relation with professional and requires a stronger protection. However, this does not exempt the consumer from exercising due diligence when concluding a contract.
(1) What is the scope of consumer protection in situations where the consumer has not exercised due diligence in assessing the content of the agreement that he/she intends to conclude?
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The Supreme Court granted the defendant's cassation appeal and referred the case to the Court of Appeal for reconsideration.