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]