Unfair Contract Terms Directive, ANNEX I, 1., (e) Unfair Contract Terms Directive, ANNEX I, 1., (i) Consumer Rights Directive, Chapter 2, Article 5, 1., (a) Consumer Rights Directive, Chapter 3, Article 6, 1., (a)

ECLI:BE:CASS:2021:ARR.20210618.1N.7

The general rule that the seller has complied with his precontractual information duty if the terms and conditions printed on the back of an order form are referred to on the front side of the order form does not apply in the case of surprising or excessive contract terms. In such a case, the back side print does not allow the consumer to gain effective knowledge of the contract terms or alternatively does not grant him/her the reasonable opportunity to become acquainted with the terms or conditions. In the presence of an excessive or surprising contract term, the seller has the duty to explicitly draw the attention of the consumer to this clause, e.g. by printing the clause on the front side of the order form just above the place where the consumer has to sign.

A seller stipulated in the general terms and conditions printed on the back of an order form that consumers could only terminate the sales contract subject to payment of 30 % of the total purchase price, except in the case of force majeur. The general information duty towards consumers imposed by the Code of Economic Law requires that before bound by the contract, consumers must be informed by the seller in a clear and comprehensible manner about the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services. The Supreme Court stated that this duty implies that prior to the conclusion of the contract, consumers need to gain effective knowledge of the terms and conditions or at least must have the reasonable opportunity to become acquainted with the terms and conditions. According to legislative history, this reasonable opportunity is offered to consumers if terms and conditions are printed on the back of an order form and referred to on the front side of the order form. However, this principle does not apply in the case of surprising (abnormal) or excessive contract terms.

Do contract terms on the back of an order form bind consumers? Must a seller inform a consumer of excessive or surprising contract terms?

The Supreme Court confirms the judgement of the Court of Appeal of Antwerp that stated that given the impactful/excessive character of the termination clause, the seller had the duty to explicitly inform the consumers. Moreover, there was no reason why this clause could not have been printed on the frontside of the order form just above the signature of the consumer. As a result, the consumer was not bound by the termination clause.

URL: https://juportal.be/content/ECLI:BE:CASS:2021:ARR.20210618.1N.7/NL?HiLi=eNpLtDKwqq4FAAZPAf4=

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The Court of Cassation imposes a stricter information duty on the seller in case of excessive and/or surprising contract terms.