Rechtsleer

Unfair Contract Terms Directive, Article 4, 2. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, Article 5

“Over de redelijke mogelijkheid tot kennisname van algemene voorwaarden in contracten met consumenten: wat in geval van ongebruikelijke of buitensporige bedingen?”.

This case note discusses the judgement of 18 June 2021 of the Belgian Court of Cassation (Supreme Court). Consent to contract clauses can be given explicitly or implicitly but it requires that the consumer before or at the time of the conclusion of the contract gains effective knowledge of its terms and conditions or at least must have reasonable opportunity to become acquainted with the terms and conditions of the contract. In principle, contract terms written on the back of a contract and referred to on the front meet these conditions, except for contract terms that are unusual or excessive at the expense of the consumer. In view of comparative law arguments, the author welcomes the judgement and even advises that it should be made a legislative rule as most consumers may easily be blindsided by such contract terms which they do not reasonably expect in the often lengthy and complex general terms and conditions. In consequence of the judgement, sellers will be forced to adopt more visible information methods to eliminate the inherently surprising nature of unusual and excessive contract terms (e.g., placing those terms on the frontside above the signature). Nevertheless, the author argues that making those terms more visible does not automatically shield them from being classified as unfair if they cause a significant imbalance in the parties’ rights and obligations (Article 3(1) UCTD). However, it is to be noted that the legal consequences will differ: unusual or excessive conditions that violate the Court of Cassation’s judgement will be considered to never have been part of the contract and can always be replaced by a supplementary provision of national law, whereas the very same term that is considered unfair in light of the UCTD must be removed as such and can only be replaced under the particular circumstances specified in the case law of the CJEU (see e.g. judgements in Arpad Kásler, Unicaja Banco and Dziubak).