• Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal Amsterdam, Judgement in case 200.258.044/01
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 25/08/2020
    • Gerecht: Gerechtshof Amsterdam
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: penalties, unfair terms
  • Richtlijnartikelen
    Unfair Contract Terms Directive, Article 3, 1.
  • Koptekst


    The terms and conditions of the contract for the lease of a house contain multiple penalty clauses. The Court of Appeal finds that the penalty clauses do not apply together and that the cumulative effects of the various sanctions for a breach of contract do not lead the applicable penalty clause to be unfair.

  • Feiten

    A consumer rented a social housing apartment in Amsterdam (hereinafter: the leased property). The leased property is approximately 46 m2 in size and has one bedroom. At the time of the initiating summons, the rent was € 481.79 per month. The landlord’s terms and conditions, which are applicable to the contract, provide, inter alia, as follows:

    “1.3 The Tenant shall not - without the Landlord's prior written consent - be authorised to assign the Subjects, in whole or in part, to third parties for the purpose of renting, subletting or using them, including the letting of rooms and the granting of boarding or the relinquishment of tenancy. (…)

    1.4 If the tenant acts in contravention of the provisions of Article 1.3, he shall forfeit to the lessor, for each calendar day that the contravention continues, an immediately payable fine equal to three times the daily rent applicable to the tenant at that time, with a minimum of €45 per day, without prejudice to the right of the lessor to demand compliance or dissolution on account of breach of contract, as well as compensation for damages when the damage exceeds the fine. Furthermore, the Tenant shall pay all income thus obtained to the Landlord.


    20.6 The Tenant shall be liable to the Landlord for an immediately payable penalty of €25 per calendar day for each obligation under this Lease with its associated general provisions which it fails to perform or violates, without prejudice to its obligation to still perform that obligation and without prejudice to the Landlord's other rights to compensation or otherwise. The aforementioned amount is based on the price level of January 1, 2003, and will be indexed annually with effect from January 1, 2004.”

    On 15 December 2009, the defendant obtained ownership of a house in Amsterdam but did not terminate the lease contract.

    On several occasions between November 2017 and July 2018, reporters engaged by the landlord made a (pre-announced) home visit to the leased property, heard children's voices and a female voice in the rented property, but no one answered. The lease agreement was terminated as of 19 November 2018.

    The landlord argued that the consumer acted in breach of Article 1.3 of the terms and conditions by leasing the property to third parties without the landlord’s permission as from 15 December 2009. The consumer, therefore, owed a penalty of € 149,779.93 pursuant to Article 1.4 of the terms and conditions.

  • Juridische kwestie

    Are the penalty clauses, given their cumulative effect, unfair within the meaning of Article 6:233 under the Dutch Civil Code?

  • Uitspraak

    The Court of Appeal holds that which terms the cumulative effect should be assessed against is a matter of interpretation of the contract. The Court of Appeal then finds that the penalty clause of Article 20.6 of the terms and conditions only applies if no other penalty clause applies to the infringement of the contract. Since the infringement of Article 1.3 of the terms and conditions is sanctioned by the penalty clause of Article 1.4 of the terms and conditions, Article 20.6 of the terms and conditions is not applicable to such infringements.

    Article 1.3 of the terms and conditions clearly states that it is forbidden to give the accommodation to third parties for use other than with the written permission of the landlord. As a clear incentive to the tenant not to violate that prohibition, a penalty clause is included in Article 1.4. The fine is set at an amount of three times the applicable rent with a minimum of €45 per day, during the period in which the tenant violates the prohibition. The amount of the fine is therefore related to the financial 'value' of the breach of contract. According to the Court of Appeal, since the defendants have it in their own hands to end the infringement of Article 1.3 of the terms and conditions, the fact that there is no maximum for the accruement of the penalty is not problematic. To the contrary, the Court holds, the existence of such a maximum would imply that at some point the clause will cease to provide an incentive to the defendants to comply with the prohibition. In addition, the Court of Appeal does not consider it unreasonable that next to the penalty, which is clearly intended to encourage compliance, Article 1.4 of the terms and conditions also obliges the tenant who violates the subletting prohibition to pay the income received by him as a subletting tenant. According to the Court of Appeal, the remittance provision is clearly intended to skim off any advantage gained by the tenant as a result of the violation of the prohibition. The cumulative effect of these two provisions in Article 1.4 of the terms and conditions is, in the opinion of the Court of Appeal, not unfair within the meaning of the Directive and Article 6:233 under the Dutch Civil Code (BW). The fact that the landlord may also claim specific performance of the obligation under Article 1.3 of the terms and conditions, termination of the contract for breach of contract, and damages if the damage exceeds the penalty do not make the clause unfair either since these rights of the landlord already follow directly from the Civil Code and it is sufficiently plausible that the landlord will need further instruments to combat illegal subletting.


    Integrale tekst: Integrale tekst

  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of Appeal finds that the landlord has proven that the defendants have breached Article 1.3 of the terms and conditions at least as of Mid-November 2017, when the reporters had visited the leased property. On the basis of this and quashing the decision of the Court of First Instance, the Court of Appeal awards the landlord a penalty of € 18.770,40 (395 days at 3 times the daily rent of € 15,84).