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 type of clause is, since March 18, 2009, presumed “irrefutably abusive”by the consumer code (article R 132-1, 6°, become R 212-1, 6°), and therefore prohibited, because of the imbalance it creates between the parties. However, it is still found in some movers’ contracts, as the following two cases demonstrate.

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 takes delivery, 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 by 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 package?

The judge should do it in his place, as required by the Court of Justice of the European Union. However, he validates the clause, by clearly confusing the insurance contract (which unites the remover to his insurer and which may include a deductible) and the removal contract (which unites the remover to 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”, that was seen 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 , since February 19, 1982, demanded its elimination… Without being heard: Eurodem was ordered to pay, on June 11, 2018, only 304 euros.

On December 11, 2019 (18-21.164), the Court of Cassation censured this judgment, with regard to the Consumer Code, and sent the parties back to the local court of Avranches (Manche). The union chamber of the removal awaited with interest the judgment of dismissal. Alas, Mr. W – taken by another move – ​​determined himself out of time, so his claim for compensation, deemed inadmissible, on June 29 (2022), was not examined 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 judgment of the Court, declarations of value will have to disappear 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”.

Leave a Comment