Case law

  • Case Details
    • National ID: Civil Appeal 9/2011
    • Member State: Cyprus
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 15/06/2016
    • Court: Supreme Court of Cyprus
    • Subject:
    • Plaintiff: Frakapor Courier Ltd and other
    • Defendant: Bank of Cyprus Public Company Ltd
    • Keywords: consumer, credit agreement, good faith, trader, unfair terms
  • Directive Articles
    Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 4, 1.
  • Headnote
    The right of a supplier to terminate, at its absolute discretion and without notice, a contract with a consumer where the supplier’s good faith is not refuted by the consumer, does not constitute unfair term.
  • Facts
    The case concerned a provision under a loan agreement between the plaintiffs and the defendant which provided, inter alia, that the defendant had the right, whenever he wants and without notice to the plaintiffs, to terminate the operation of any account and/or to make due and payable any loan and/or credit and/or other bank or credit facility granted to the plaintiffs.

    The plaintiffs alleged that the right of the defendant to terminate as aforesaid was based on a provision which constitutes not applicable unfair term as it is contrary to the provisions of article 3 of Directive 93/13/EC (implemented into national law by article 5 of the Unfair Terms in Consumer Contracts Law 93(I)/1996).

    The defendant replied that the first instance court’s interpretation of article 3 of Directive 93/13/EC (implemented into national law by article 5 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), was correct since it afforded the right to supplier of financial services i.e. bank institutions, to terminate an agreement unilaterally and without notice, for a serious reason, following notification to the plaintiffs, something that had been done in this particular case.

    The specific question before the first instance court as well as before the court was whether the foregoing provision could be characterized as including unfair term.
  • Legal issue
    The court upheld the first instance court’s approach that in order for a court to be lead to the finding that the right of a supplier to terminate, at its absolute discretion and without notice, a contract with a consumer, constitutes an unfair term, the existence of good faith on the part of the supplier must be refuted by the consumer. The court added that they could not find any fault in the first instance court’s decision in particular where, based on article 3 (2) of Directive 93/13/EC (implemented into national by section (2) of article 5 of Unfair Terms in Consumer Contracts Law 93(I)/1996),the circumstances, existing at the time of concluding the contract, and the rest terms of the contract are examined in the context of determining “good faith”.
  • Decision

    Does the right of a supplier to terminate, at its absolute discretion and without notice, a contract with a consumer constitute unfair term, if the supplier’s good faith is not refuted by the consumer?

    URL: http://www.cylaw.org/cgi-bin/open.pl?file=apofaseis/aad/meros_1/2016/1-201606-9-111.htm&qstring=frakapor

    Full text: Full text

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  • Result
    The court upheld the first instance court’s judgment.
    The plaintiffs’ reason for appeal was rejected.