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Case Details

Case Details
National ID link
Member State Belgium
Common Name link
Decision type Court decision in appeal
Decision date 07/06/2010
Court Antwerp Court of Appeal
Subject
Plaintiff G.K and G.D.
Defendant NV I.K.
Keywords general discussion, imbalance between the rights of the parties, price

Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2.

A contractual term in general sales conditions of a seller, stipulating that the seller is entitled to damages amounting to 30% of the agreed price in case of withdrawal of the order, constitutes a term creating a significant imbalance between the rights and obligations of the parties in light of Directive 93/13.
The plaintiffs signed an order for the purchase of an equipped kitchen in the showroom of the defendant, based on a rough sketch on the back of the order.

The day after they had signed the order, the plaintiffs wanted to cancel the purchase because they were caught off guard in the showroom and wanted to make a deliberate decision concerning the kitchen and the price. There also were uncertainties in relation to the manner in which the price of the kitchen was calculated.

Due to a term in the general sales conditions, the plaintiffs were allowed to withdraw from the purchase only under the condition of a payment of 30% of the estimated price of the kitchen.
According to the court, the agreement does not put an obligation of immediate performance on the seller but, conversely, does lead to the consumer being bound immediately and for a long term period to the seller. Consequently, the consumer is deprived of the opportunity to contract with another vendor.

Next, the court considers that by making the termination of the contract subject to the payment of an exorbitant amount (being 30% of the initial price), a significant imbalance between the rights and obligations of the parties is being established.

For those reasons the court declares the article of the general sales conditions, establishing that imbalance, null and void under article 6 of the Directive 93/13.
Does a contractual term in general sales conditions of a seller, stipulating that the seller is entitled to damages amounting to 30% of the agreed price in case of withdrawal of the order, constitute a term creating a significant imbalance between the rights and obligations of the parties in light of Directive 93/13?
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The appeal was upheld by the court.