watch out for abusive clauses in contracts

Lhe professional who does business with a consumer does not have the right to insert a clause in his contract stipulating that, if he fails to fulfill his obligations, he will not have to fully compensate for the damage he has caused. This kind of clause is, since March 18, 2009presumed "irrefutably abusive"by the Consumer Code (article R 132-1, 6°, became R 212-1, 6°), and therefore prohibited, due to the imbalance it creates between the parties. However, it is still found in some movers' contracts, as the following two cases show.

Read also: The mover breaks: only one year to take legal action

On March 24, 2018, Service Poids Lourd moved M's pianome X. When the latter receives it, she notices that her varnish has two chips. She claims the reimbursement of the costs of restoration, in the amount of 250 euros, according to the estimate of the restorer. The company refuses to pay them, on the grounds that this sum is lower than the amount of the "compensation deductible", of 390 euros, provided for in their contract.

Mme X then summons Service Poids Lourd before the Saint-Denis district court (Seine-Saint-Denis), without however explaining that such a franchise clause is abusive, with regard to the Consumer Code, because it limits the consumer's right to compensation, in the event of professional fault.

Read also: Was the piano a piece of furniture or a parcel?

The judge should do it for him, as required the Court of Justice of the European Union. However, he validates the clause, by clearly confusing the insurance contract (which unites the remover with his insurer and which may include a deductible) and the removal contract (which unites the remover with his client, and which can only provide for a dilapidation coefficient). April 13 (2022, 20-17.128)it is the Court of Cassation, seized by Mme X, who "ex officio relief" the abusive nature of the disputed clause. She censures the judgment and sends the parties back to a new court, which will have to win the pianist's case.

The trade union chamber of the move requests their maintenance

On June 11, 2018, it is a clause of “limited value”, against Mr W, when he claimed from his mover, Eurodem, 1,600 euros, corresponding to the reimbursement, new, of two damaged pieces of furniture (flat-screen television and American refrigerator whose spare parts were not no longer existed). Eurodem argued that it had not included them in its "statement of value"supposed to list the objects which were worth more than 152 euros, threshold which it had "fixed itself".

Before the Coutances court (Manche), Mr. W's lawyer assured that the very principle of the declaration of value was abusive, in that it limits the liability of the professional... He specified that the unfair terms commission , from February 19, 1982demanded its elimination… Without being heard: Eurodem was only ordered to pay, June 11, 2018only 304 euros.

December 11, 2019 (18-21.164), the Court of Cassation censured this judgment, with regard to the Consumer Code, and referred the parties to the local court of Avranches (Manche). The union chamber of the move was awaiting the dismissal judgment with interest. Alas, Mr. W – taken by another move – appeared out of time, so that his claim for compensation, deemed inadmissible, June 29 (2022)was not considered on the merits.

Read also: Article reserved for our subscribers Moving with the help of friends is like entering into a “volunteer assistance agreement” with them.

After the Court ruling, declarations of value should have disappeared from contracts. The union chamber for removals, however, indicates that it has requested their maintenance, to several ministries (transport, economy, SME). It fears in particular that, if there is no longer any declaration of value or inventory, customers in bad faith will claim reimbursement from the remover for objects that he would never have transported. She indicates "wait for response".

Source link