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Case Details

Case Details
National ID I CSK 125/15
Member State Poland
Common Name link
Decision type Supreme court decision
Decision date 15/01/2016
Court The Supreme Court
Subject
Plaintiff Stowarzyszenie L. in P.
Defendant S. C. Spółka Jawna C. with registered office in L.
Keywords average consumer, consumer rights, terms and conditions, unfair terms, violence

Unfair Contract Terms Directive, Article 3, 1.

(1) A gross and significant imbalance of the parties's rights and obligations to the detriment of the consumer is the condition for declaring that the provisions included in a model contract grossly violate the consumer interests.

(2) In order to assess that a particular provision in a model contract causes an imbalance of the rights and obligations of the parties to a contract the consumer's situation in the light of this provision should be compared with the consumer's situation if the provisions of law would be applied.

(3) The gross imbalance of the rights and obligations of the parties to a contract is contrary to good morals when it may be reasonably assumed that the contractor of the consumer, who treats him fairly and rightly, could not rationally expect that the consumer accepts the imbalance-creatingprovision during negotiations.
The plaintiff ( the buyer) in its claim against the defendant (the seller) moved that the provision included in the model contract for the sale of a car be recognised unlawful and prohibited in contracts concluded with consumers. The questioned clause provided that “in the extraordinary circumstances, which will make the supply of the ordered car to the buyer impossible, the seller can rescind the contract until the day of car’s receipt, by a written notice provided to the buyer in person or via registered letter.”

The District Court declared that the questioned provision was an abusive clause, because it violated the balance of the parties. The consumer could not verify that the “extraordinary circumstances” were justified and the duties of the seller were limited in order to inform the consumer about its rescissionof the contract.

The defendant appealed to the Court of Appeal, but the appeal was dismissed.

Finally, the defendant filed a final complaint to the Supreme Court in Warsaw.
The Supreme Court (hereinafter referred to as.: “the court”) pointed out that the provisions included in a model contract grossly violate consumer interests when the imbalance of parties’ duties and obligations is gross and significant, to the detriment of the consumer.

The court emphasized that the assessment that the provision included in the model contract causes an imbalance of the rights and obligations of the parties can be made by the comparing the consumer's situation in the light of this provision with the consumer's situation if the provisions of law would be applied.

The court noticed that the “extraordinary circumstances” mentioned in the questioned clause may depend on reasons on the part of the defendant. In those situations the consumer would be deprived of the rights to demand compensation for damage and to rescind the contract. Both those rights are provided for by the Civil Code.

The court approved the view that the construction of this provision causes an imbalance of the parties' rights and obligations, which is unfavorable to consumers. In the light of the questioned clause, the plaintiff could not exercise its right to compensate the damage resulting from non-performance of the contractual obligation by the defendant.

Moreover, this imbalance of the parties' rights and obligations is contrary to good morals, because it cannot be justified. The court pointed out that the gross imbalance of the parties of contract is contrary to good morals when it may be reasonably assumed that the contractor of the consumer, who treats him fairly and rightly, could not rationally expect that the consumer accepts the imbalance-creating provision being during negotiations.

The court decided to dismiss the final complaint of the defendant.
(1) What are the conditions to declare that the provisions included in a model contract grossly violate consumer interests?

(2) How to assess that the provision n a model contract causes an imbalance of the rights and obligations of the parties to a contract?

(3) When is the gross imbalance of the rights and obligations of the parties to a contract contrary to good morals?
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The Supreme Court dismissed the final complaint of the defendant.