Case law

  • Case Details
    • National ID: P. 83348
    • Member State: Portugal
    • Common Name:link
    • Decision type: Other
    • Decision date: 06/05/1993
    • Court: Supremo Tribunal de Justiça (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, ANNEX I, 1.
  • Headnote
    The following terms in a gas supply contract are completely unlawful: terms that a) entitle the company to delegate unilaterally responsibility for supplying gas to another company it has selected; b) entitle the company to alter unilaterally the charges for leasing the gas meter; and c) entitle the company to absolve itself of any liability for damage caused by gas supply-related accidents.
  • Facts
    The Public Ministry (Ministério Público) brought a case in which the court was asked to rule on the validity of certain terms in gas supply contracts concluded between a company and a consumer. The plaintiff brought a claim requesting that the company refrain from using the terms in any future contracts with consumers. It also applied for the verdict to be made public.
    The validity of the following terms was under examination:
    a) Under term 1, the consumer agreed that the company would supply gas. However, the term added that any other entity the company selected could supply the gas.
    b) Under term 3, § 4, gas prices would be set by law. However, the charges for leasing the gas meter would be set by the company, which could alter them at any time.
    c) Under term 5 a), the consumer was obliged to comply with any instructions from the company (or the gas supplier designated by the company). The consumer also acknowledged that the company was in no way liable for gas-related accidents or for wear and tear to the necessary equipment or to the material being leased.
  • Legal issue
    As per Decree 446/85, the first term, under which the gas could be supplied by an entity other than the company with which the consumer had concluded the contract, was invalid and completely unlawful. Indeed, article 18 (l) bans any terms that allow one party to transfer its contractual position or to sub-contract; in other words, precisely what the term under examination was providing for. The first term entitled the company to transfer its contractual position or to sub-contract gas supply, without any authorisation from the consumer. The company was merely obliged to inform the consumer of the change a posteriori. The ban on such terms is not affected by the rules of interpretation or integration under articles 10 and 11, since these apply solely where it is necessary to resolve disputes arising from existing contracts.
    Term 3, § 4, was unlawful insofar as it entitled the company to alter the charges for leasing the gas meter unilaterally and thus infringed article 22 (d), which bans any terms that allow for a price increase in contracts for successive payments over relatively short periods. The defendant had argued that payment of leasing charges could not be viewed as a “price”. However, the court countered that the term “price” was to be interpreted as a payment made for the transfer or acquisition of a good.
    Article 18 (a), (b), (c), and (d) bans any clauses that limit liability for damages, in particular damages that impact on a person’s life, physical or ethical integrity or health, non-contractual property damages, damages resulting from full or partial non-compliance with the contract, and damages caused by the actions of representatives or agents. As such, term 5 a) was unlawful insofar as it entitled the company to absolve itself of liability, which it was required to bear under law, for accidents caused either by the gas supply alone or in conjunction with the equipment, irrespective of whether the injured party or another person was at fault.

    [Abstract drafted by Ana Raquel Moniz]
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result