• Bijzonderheden van de zaak
    • Nationaal ID: ECLI:NL:GHAMS:2016:4314
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 01/11/2016
    • Gerecht: Gerechtshof Amsterdam
    • Onderwerp:
    • Eiser: Gemeente Amsterdam
    • Verweerder: N/A
    • Trefwoorden: harmonisation, imbalance between the rights of the parties, national law, unfair terms
  • Richtlijnartikelen
    Unfair Contract Terms Directive, link Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 4, 1.
  • Koptekst
    A penalty clause of €10.000 on a monthly basis that is incorporated in ground lease conditions is not unfair.
  • Feiten
    The plaintiffand defendant entered into a ground lease. According to this, the defendant has the obligation of completing a construction. If the defendant fails, he has to pay a monthly fine of €10.000.
  • Juridische kwestie
    Is a penalty clause incorporated in ground lease conditions of €10.000 on a monthly basis an unfair term?
  • Uitspraak

    As art. 6:233 (a) BW is not a direct implementation of art. 3 (1) of Directive 93/13, this national law should be interpreted in accordance with art. 3 (1) of Directive 93/13. The list of unfair terms in the annex according to art. 3 (3) of Directive 93/13 is indicative and non-exhaustive. Therefore, a term can be unfair despite not being recognized in the list as an unfair term. It is important to assess if the term was negotiated and if the term, contrary with the principles of good faith, upsets the balance of the contractual rights and obligations of the parties to the detriment of the consumer. All circumstances must be judged, taking into account the nature of the goods and/or services.

    The court states that there are no objections against the community using a penalty clause of €10.000 on a monthly basis to fulfil its policy goals. This is more effective and efficient than going to court to enforce compliance of the contract. Furthermore, the amount of the penalty is not unfair because a penalty clause is only effective if the amount of the penalty is high enough. However, the penalty had no cap and this made the clause unfair.

    Another reason why the term is unfair is because the construction term - approximately three years - is too short and the leaseholder is obliged to continue the ground lease in any case.


    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat
    The court upheld the first instance court's judgment.