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PAGE CONTENTS
Case Details
National ID:
link
Member State:
Belgium
Common Name:
link
Decision type:
Other
Decision date:
29/03/1999
Court:
Hof van Beroep (NL)/Cour d'appel (FR) (Appellate court, Mons)
Subject:
Plaintiff:
Defendant:
Keywords:
Expand all
|
Collapse all
Directive Articles
Unfair Contract Terms Directive,
Article 2
Unfair Contract Terms Directive,
Article 3, 1.
Unfair Contract Terms Directive,
Article 6, 1.
Headnote
An infringement of the provisions concerning unfair contract terms is sanctioned with relative nullity. As a result the court cannot invoke the nullity of an unfair term on its own motion.
The contractual term by which the seller excludes liability for the performance of a principal obligation of the contract, creates a clear and manifest imbalance in the meaning of Article 31 of the Act of 14 July 1991.
Facts
On 21/01/1991, a bank employee transfers an amount of 488.624 Belgian francs from one account to another. The request to transfer this amount is not done with the standardised form, but by letter. The account holder had sent similar letters in the past, requesting money transfers.
The signature on the last letter is a perfect imitation of that in previous letters, but the last letter contains several spelling errors and is drafted in poor French, unlike the previous letters.
The account holder denies that he has written the letter requesting the money transfer. A criminal investigation confirms this claim. The account holder claims that the bank committed a contractual error by transferring the money without being ordered by him to do so. He initiates proceedings against the bank to reclaim his money and in any case wants to be compensated also for additional damages resulting from the transfer.
The general conditions of the bank, which are incorporated in the contract between the bank and the account holder, contain the following clauses:
1) On the subject of the verification of the signature, the bank is only liable if it commits a grave error.
2) The account holder bears full responsibility for the consequences resulting from the use of incomplete, incorrect or unauthentic documents for which the bank, when the documents are drafted in a foreign country, does not assume liability concerning their authenticity, validity, translation or interpretation.
On the basis of these clauses, the bank argues that it is not liable for the faulty money transfer.
Legal issue
According to the bank, aforementioned second clause implies that the bank only has to verify the signature and the account balance when making a money transfer and bears no further liability.
In contrast, the court rules that by limiting its responsibility to the control of the signature and the account balance, the bank deprives the contract of its main subject matter.
The court finds consequently that a clause which deprives the contract of its main subject matter creates a manifest imbalance between the rights and obligations of the parties, and is therefore unfair on the basis of Article 31 TPA.
The court thus concludes that the bank cannot invoke the second clause to deny its liability, since that clause is unfair and therefore null.
By executing the order without noticing a number of suspicious elements which might reveal the wrongful origin of the order, the bank committed a contractual error and is therefore liable for the damages so caused to the account holder.
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In which EU country?
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Taking evidence (recast)
European enforcement order
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Succession
European Account Preservation Order
Compensation to crime victims
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Your rights
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If my claim is to be considered in this country
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Protection of vulnerable adults
Rights of minors in court proceedings
Access to justice in environmental matters
Legislation and case law
EU law
National legislation
International law
Publication of official announcements
Consumer Law Database
Country
Enforcement
Price Indication Directive (98/6)
Text of the Directive (98/6)
Consumer Sales and Guarantees Directive (1999/44)
Text of the Directive (1999/44)
Unfair Commercial Practices Directive (2005/29)
Text of the Directive (2005/29)
Misleading and Comparative Advertising Directive (2006/114)
Text of the Directive (2006/114)
Timeshare Directive (2008/122)
Text of the Directive (2008/122)
Injunctions Directive (2009/22)
Text of the Directive (2009/22)
Consumer Rights Directive (2011/83)
Text of the Directive (2011/83)
Unfair Contract Terms Directive (93/13)
Text of the Directive (93/13)
Package Travel Directive (2015/2302)
Text of directive (2015/2302)
Digital Content Directive
Text of the directive (2019/770)
Sale of goods directive
Text of the directive (2019/771)
Representative actions directive
Text of the directive (2020/1828)
Repealed
Doorstep Selling Directive (85/577)
Text of the Directive (85/577)
Package Travel Directive (90/314)
Text of the Directive (90/314)
Timeshare Directive (94/47)
Text of the Directive (94/47)
Distance Selling Directive (97/7)
Text of the Directive (97/7)
Glossaries and translations
EU case law
European Case Law Identifier (ECLI)
European Case Law Identifier (ECLI) search engine
Freedom of movement and other Union citizens’ rights
National case law
International case law
Registers - business, insolvency & land
Business registers – search for a company in the EU
Business registers in EU countries
Land registers - EU level
Land registers in EU countries
Bankruptcy and insolvency registers
Beneficial ownership registers interconnection system (BORIS)
Bankruptcy & insolvency registers - search for insolvent debtors in the EU
Find a legal professional
Types of legal professions
Lawyers
Notaries
Legal translators/interpreters
Find an expert
Forensic experts
Mediators
Trainings, judicial networks and agencies
Training of justice professionals
EU judicial training policy
European training platform
EU training networks & structures
National training systems
Initial training of judges and prosecutors in the European Union
Initial training of lawyers in the European Union
Judiciary training providers
Court staff training systems
Lawyers' training systems
Good training practices
Training methodology
European Judicial Network in civil and commercial matters
About the network
Information for citizens
Assistance to judges & other judicial authorities
Events/news
EJN's publications
Information on national law (information sheets)
Members' section
Links
European Judicial Network in criminal matters
About EJN
Judicial ATLAS in criminal matters
Compendium
Judicial library
Fiches Belges
Information about national systems
Cooperation with non-EU countries and judicial networks
Eurojust
European Law Institute
EuroPris