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.
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