2012/7/19 - 28 Cdo 2552/2011 (summary)

Czech Republic – Supreme Court – Decision No. 28 Cdo 2552/2012 – July 19, 2012

(package tour – null and void agreement – Council Directive 93/13/EEC on unfair terms in consumer contracts)

In this case, the Plaintiff sought that the Defendant be ordered to pay CZK 57,710 plus interest. The Plaintiff was interested in purchasing a package tour to T from September 1, 2006, to September 14, 2006, as advertised by the Defendant. The Defendant sent to the Plaintiff an electronic draft agreement, which was, filled out, subsequently sent by the Plaintiff back to the Defendant. However, the Plaintiff decided not to take the package tour and requested that the price of the package tour she had paid be returned to her. The Plaintiff considered the agreement to be null and void due to uncertainty, since in addition to the Defendant, it mentioned a company named SUNTIMES TOURS, s.r.o., and it was not clear from the agreement which of those companies was the party to the travel agreement. The District Court (CZ) dismissed the claim, since it was clear to all the parties to the contractual relationship that CK SUNTIMES, not the Defendant, was supposed to be a party to the travel agreement. However, the first-instance court ruled that the travel agreement was null and void, since it lacked the Plaintiff’s signature. The Regional Court varied the judgment of the first-instance court and ordered that the Defendant pay to the Plaintiff CZK 57,710 plus interest. The appellate court referred to the fact that no agency agreement was entered into between the Plaintiff and CK SUNTIMES, since CK SUNTIMES did not sign the agreement.

The Supreme Court of the Czech Republic held that the Defendant would have the capacity to be sued only if it were party to the void travel agreement. Simultaneously, the factual situation, i.e. who was the final recipient of the amount at issue, was also essential for the determination of the question of capacity to be sued. In determining the case, the appellate court also based its conclusions on Section 55(3) of the Civil Code, which is an implementation of Council Directive 93/13/EEC on unfair terms in consumer contracts. The Supreme Court of the Czech Republic also dealt with the question of referring the case to the Court of Justice of the European Union for a preliminary ruling. However, the Supreme Court inferred that this was not necessary since the contractual condition of the above provision is deemed to be the determination of the rights and obligations of the parties, not the determination of who the parties to an agreement are. The Supreme Court vacated the judgment of the appellate court and remanded the case for further proceedings.