Teismų praktika

  • Bylos aprašymas
    • Nacionalinis numeris: Supreme Court, Judgement e3K-3-222-403/2020
    • Valstybė narė: Lietuva
    • Bendrinis pavadinimas:N/A
    • Sprendimo rūšis: Aukščiausiojo Teismo sprendimas
    • Sprendimo data: 02/07/2020
    • Teismas: Lietuvos Aukščiausiasis Teismas
    • Tema:
    • Ieškovas:
    • Atsakovas:
    • Raktažodžiai: unfair terms, real estate, immovable property, average consumer
  • Direktyvos straipsniai
    Unfair Contract Terms Directive, link
  • Įžanginė pastaba

    1. Contract terms cannot be regarded as individually negotiated if the trader does not prove that they were actually negotiated, and that the consumer was able to influence the content of such terms.

    2. Brokerage contract terms 1) "The sale price of a land plot with a house is 1400 Eur / a. The price of the property may be changed by agreement of both parties" (Clause 1), 2) “The commission is equal to 3 percent from the sale price of the property plus VAT, if the sale price of the plot does not exceed the sale price specified in Clause 1 of the Agreement”, and 3) “If the broker agrees on a better sale price of the plot and the buyer agrees to pay more than the sale price of the plot specified in Clause 1, then the broker is also paid a 50% success fee from a price exceeding the price referred to in Clause 1" were considered unfair.

  • Faktai

    Plaintiff (consumer) and defendant (real-estate agency) entered into a brokerage contract to help the plaintiff sell his house and plot of land. The contract provided the estimated price of the real estate and stipulated that the commission for the real estate agency is 3 percent from the sale price of the property plus if the sale price exceeds the estimated price, the broker shall be paid a 50 percent success free from the exceeding amount. The broker very successfully sold the house with the plot of land for a price well-exceeding the estimated amount and issued a prepayment invoice to the plaintiff for EUR 247,183.64 for the services provided under the brokerage contract. The plaintiff alleged that he had been misled by the essential terms of the brokerage contract. The plaintiff claimed he had not realised that he would have to pay a success fee of one-third of the value of the property, which, had he known, he would not have entered into the brokerage contract. The First Instance Court dismissed the action of the plaintiff and upheld the counterclaim of the defendant in part, rewarding him EUR 206,436.08 debt and 5 percent annual procedural interest. The Appellate Court left the decision of the First Instance Court unchanged.

  • Teisės klausimas

    1. Can contract terms be regarded as individually negotiated if the trader does not prove that they were actually negotiated, and that the consumer was able to influence the content of such terms?

    2. Should brokerage contract terms 1) "The sale price of a land plot with a house is 1400 Eur / a. The price of the property may be changed by agreement of both parties" (Clause 1), 2) “The commission is equal to 3 percent from the sale price of the property plus VAT, if the sale price of the plot does not exceed the sale price specified in Clause 1 of the Agreement”, and 3) “If the broker agrees on a better sale price of the plot and the buyer agrees to pay more than the sale price of the plot specified in Clause 1, then the broker is also paid a 50% success fee from a price exceeding the price referred to in Clause 1" be considered fair?

  • Sprendimas

    1. In order for the terms of a consumer contract to be considered individually negotiated and not subject to fairness control, two requirements must be met: 1) the trader must prove that the consumer had the opportunity to negotiate (negotiations actually took place); 2) the trader must prove that during the negotiations he has given the consumer real and reasonable opportunities to change the content of the contract. If, during the negotiations between the parties, no changes to the terms of the contract have been made to the consumer's advantage, the entrepreneur must prove that the consumer did not want to make the changes, even if: 1) all the conditions were met, 2) the consumer’s requirements were unfounded, 3) or the consumer did not aim to reach a final agreement. The above circumstances were not established by the courts in the case. By misinterpreting the requirements which consumer contract negotiations must satisfy in order to be regarded as individually negotiated, and by relying solely on the fact that the terms of the brokerage agreement were negotiated at the plaintiff's place of residence, the courts wrongly held that the brokerage agreement was individually negotiated. As the plaintiff rightly points out in the appeal, the courts, having not established whether there was evidence in the case file that the terms of the brokerage agreement had been negotiated and that the consumer could influence the content of such terms, should have found that the purpose of the evidence was not achieved.

    2. Clause 1 of the brokerage agreement stipulates that "The sale price of a land plot with a house is 1400 Eur / a. The price of the property may be changed by agreement of both parties”. From the content of this Clause, it is not clear whether the stated price is indicative (for guidance on the approximate price the seller seeks to sell the property) or whether the stated selling price can be changed by agreement, meaning that if the assets were sold at a higher price, the parties would be deemed to have altered the sale price of the assets set out in Clause 1 of the brokerage agreement (EUR 1400 per ace) by their collusive actions.

    Clause 3 of the brokerage agreement stipulates that “The commission is equal to 3 percent from the sale price of the property plus VAT, if the sale price of the plot does not exceed the sale price specified in Clause 1 of the Agreement”. From the content of this Clause, it is not clear whether the commission of 3 per cent should be paid if the property is sold at a higher price than specified in Clause 1 of the brokerage agreement.

    Clause 3 and 4 of the brokerage agreement stipulate that “If the broker agrees on a better sale price of the plot and the buyer agrees to pay more than the sale price of the plot specified in Clause 1, then the broker is also paid a 50% success fee from a price exceeding the price referred to in Clause 1". These clauses do not clearly and comprehensibly set out the mechanism for determining the remuneration to be paid to the broker regarding the 3 percent commission and 50 percent success fee ratio. Nor is the determination of the remuneration to be paid to the intermediary clearly defined in the context of the right of the parties to change the price of the property by mutual agreement enshrined in Clause 1 of the brokerage agreement. Therefore, the conclusion of the courts that the procedure for calculating the commission and the success fee is clearly specified in the brokerage agreement, cannot be accepted.

    After assessing the brokerage agreement, it can be concluded that the conditions established in clauses 1, 3 and 4 thereof are not expressed clearly and comprehensibly, thus it contradicts the principle of transparency and is unfair in accordance with the legal regulation established in Article 6.2284 paragraph 6 of the Civil Code.

    In the context of the present case, it is common ground that, in negotiating such a condition individually, the plaintiff, knowing that the final sale price could vary so sharply, would not agree to the contractual success fee, since it would have very significant negative economic consequences.

    URL: https://eteismai.lt/byla/108960464900227/e3K-3-222-403/2020

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  • Rezultatas

    The Court decided to annul the decision of the Appellate Court and to remit the case back to the Appellate Court.