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Case Details

Case Details
National ID ECLI:NL:RBAMS:2012:BY2598
Member State Netherlands
Common Name link
Decision type Court decision, first degree
Decision date 29/08/2012
Court District court Amsterdam
Subject
Plaintiff Unknown
Defendant Unknown
Keywords inaccurate information, public auction, terms & conditions

Unfair Contract Terms Directive, link Unfair Contract Terms Directive, Article 4

Title 5, section 3 of book 6 of the Dutch Civil Code (DCC) - which states that a consumer must be given a reasonable opportunity to take note of the terms & conditions in order for the contract to not be subject to nullification - does not apply to international agreements whereby both parties act in the course of their business.
The plaintiff lives in Italy and trades in antique goods. In a brochure of warehouse Christie's Amsterdam (the defendant), he finds an antique sculpture that he wants to buy. The defendant offers a telephonic service for buyers in a different country. The plaintiff decides to use this service and asks an employee of the defendant to buy the sculpture with number 184. At the auction, the employee of the defendant automatically assumes that number 184 is being auctioned after number 183. The employee bids the highest amount and the plaintiff is awarded with a tapestry that has number 183A instead of the sculpture. The defendant has excluded liability for failure to correctly execute a telephonic bid in her terms and conditions. The plaintiff claims to have suffered damages because of lost profit. The defendant claims to have lawfully excluded this liability in her terms and conditions.
The court deems the relationship between the plaintiff and the defendant an international legal relationship, whereby both parties are acting in the course of their businesses. According to Article 6:247 paragraph 2 DCC, Title 5 section 3 of Book 6 DCC, general terms and conditions are non-applicable when the plaintiff does not live in the Netherlands. The claim of the plaintiff that the telephone clause of the defendant is unreasonably onerous is therefore not dealt with by the court. Because the service was free and mistakes are to be expected in telephonic bids, the court deems it reasonable that the defendant excluded liability for failure to correctly execute a telephonic bid.
Does title 5, section 3 of book 6 of the Dutch Civil Code (DCC) - which states that a consumer must be given a reasonable opportunity to take note of the terms & conditions in order to not be subject to nullification - also apply to international agreements whereby both parties act in the course of their business?
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The court denies the plaintiff's request for damages and convicts the plaintiff to pay the legal costs.