Case law

  • Case Details
    • National ID: 19 C 215/2014
    • Member State: Czechia
    • Common Name:link
    • Decision type: Court decision, first degree
    • Decision date: 07/10/2014
    • Court: The District Court in Zlín
    • Subject:
    • Plaintiff: I.J., s.r.o. (a legal person, a limited liability company)
    • Defendant: Mr M.B. (a natural person)
    • Keywords: consumer, consumer rights, penalties, terms and conditions
  • Directive Articles
    Consumer Rights Directive, Chapter 1, Article 1 Consumer Rights Directive, Chapter 3, Article 8
  • Headnote
    (1) Unlike previous legislation (prior 1 January 2014), the new Civil Code does not require a written contractual penalty. However, pursuant to the case of the Constitutional Court of the Czech Republic (see file no. I. ÚS 3512/11), in consumer agreements, provisions governing a contractual penalty may not be a part of the general terms and conditions. The only way is to have the provision about the contractual penalty directly in the agreement itself (i.e. in the document to which the consumer attaches their signature) . Furthermore, pursuant to the new legislation, where the contractual penalty is not provided in the above-mentioned manner, such penalty shall not automatically become void (as it was pursuant to the legislation effective prior 1 January 2014), but the court shall not consider such a penalty to be valid if the consumer does not explicitly invoke the provision. In other words, such a penalty shall be deemed, unless provided otherwise, voidable.

    (2) Where an authorised electronic signature was not attached to a data message, a document (the general terms and conditions) containing a provision about the contractual penalty cannot be deemed as personally undersigned by a customer. Such a provision shall be deemed voidable, unless expressly invoked by the customer.
  • Facts
    The defendant entered into a loan agreement with the company, a legal predecessor of the plaintiff. The agreement was concluded by means of long-distance communication (i.e. email). The loan was subsequently approved and the money was sent to the defendant's account. However, the defendant did not return the funds to the company. Therefore, the company transferred its claim to the plaintiff. The funds were not returned to the plaintiff either.

    Under the General Terms and Conditions, effective as of 1 January 2014, the defendant undertook to repay the loan and pay the fee to the company on the day specified in the loan agreement, to the account that would be specified in an email sent to the defendant after approving the loan and sending the money to his account. Should the defendant fail to fulfil his obligation to repay the loan and/or to pay the fee within the agreed period of time, he would be obliged to pay a contractual penalty for delay in the amount of CZK 1,600 (in case of delay of over 30 days).

    Since the defendant failed to fulfil his obligation to repay the loan, the plaintiff filed an action for payment of CZK 9,100 with accessories, i.e. not only the amount of funds provided to the defendant, but also the fee, the default interest and the contractual penalty.
  • Legal issue
    Since the contractual penalty was agreed upon contrary to the case law of the Constitutional Court - no handwritten signature nor an authorised electronic signature of the consumer was attached to either document containing the penalty (i.e. the loan agreement and the general terms and conditions, entered into via email) - the consumer did not explicitly invoke such provisions. Therefore, the claim for the contractual penalty could not be accepted.
  • Decision

    May the contractual penalty be included only in the general terms and conditions or does it have to be included in the wording of the agreements itself?

    URL: N/A

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result
    The court partially upheld the action for payment (regarding the obligation of the Defendant to repay the loan and the default interest) and partially rejected it (regarding the contractual penalty).