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Case Details

Case Details
National ID I CSK 72/15
Member State Poland
Common Name link
Decision type Supreme court decision
Decision date 04/03/2016
Court The Supreme Court
Subject
Plaintiff Stowarzyszenie "T." with its registered office in P.
Defendant S. C. Spółka Jawna C. with its registered office in L.
Keywords case law, consumer rights, transparency, unfair terms

Unfair Contract Terms Directive, Article 5

(1) The provisions of a model contract that are not clear and comprehensible should be considered as unfair.

(2) The assessment of whether a contract is non-transparent is made in the context of its abusiveness. The application of the “test of abusiveness” towards non-transparent provisions is the only measure of consumer protection.
The plaintiff questioned a provision in a model contract concluded with the defendant concerning the sale of a car.

The provision provided that “the payment on account paid by the buyer will be kept by the seller in following situations: (…) (b) if the buyer will not ensure the money for the car until the day of its reception set by the seller.”

The plaintiff (the buyer) demanded that the provision be declared unlawful and that it be prohibited in contracts concluded with consumers.

The Court of Competition and Consumer Protection found in favour of the plaintiff and declared that the provision in the sale contract was unlawful. The Court of Appeal also shared this point of view and dismissed the defendant’s appeal.

Finally, the defendant filed a final complaint with the Supreme Court in Warsaw
The Supreme Court (hereinafter referred to as “the court”) observed that in accordance with Article 385 § 2 of the Civil Code a model contract should be clear and comprehensible. The court pointed out that the rule saying that ambiguous provisions must be interpreted to the consumer's benefit is not applicable in the proceedings to have some provisions in model contracts declared as unlawful. This rule comes directly from Article 5 of Directive 93/13/EEC on unfair terms in consumer contracts.

The court stated that the requirement of comprehensibility in respect of a contract refers to its wording and form. At the same time, a clear model contract cannot be interpreted ambiguously. This condition is fulfilled only when the provisions of a contract don’t give rise to any doubts concerning their meaning and can be understood by a typical consumer in one possible manner.

The court emphasized that the abstractive control of unfair terms in consumer contracts has a preventive character and is assessed in the objective manner. In the court’s opinion, the provisions of a model contract that are not clear and comprehensible should be considered as unfair. As a result, these terms could be prohibited and not applicable in the future. The court also noticed that under the abstractive control regime, the assessment that a contract is non-transparent is made in the context of its abusiveness. Application of the “test of abusiveness” towards non-transparent provisions is the only measure of consumer protection.

The court mentioned that the Court of Appeal in its judgment did not take into account the consumer’s typical knowledge concerning institutions provided for by the Civil Code. The court pointed out that the provision questioned by the plaintiff is concise, does not refer to the other provisions of the contract and does not include the terms which might complicate its interpretation. Moreover, the conclusion of the model contract containing the questioned provision does not require the engagement of a professional legal advisor. In the court’s opinion, this provision is drafted in plain language and the only one interpretation is possible.

Taking the foregoing into account, the court quashed the judgment of the Court of Appeal.
(1) When can a provision of a model contract be considered unfair?

(2) What is taken into account when assessing whether a provision of a model contract is non-transparent?
URL: N/A
Full Text: Full Text

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The Supreme Court granted the final appeal of the plaintiff.