The conditions are often written very small, but consumers know it: if you want to cancel your mobile phone subscription before the end of the contract, penalties are claimed from us. At the end of September, the Court of Cassation ruled that these early termination penalties can be challenged in court and reduced if necessary.
621 euros claimed
This judgment confirms the decision of the Saint-Paul court, which had divided by six the amount claimed by a supplier from a customer who broke her two 24-month commitments. The company Telco OI claimed the legal maximum, that is to say 621 euros, which represented almost all the sums due for the two years of subscription. For that, he invoked a clause inserted in the contract.
This clause is “a means of forcing the subscriber to perform the contract,” the court observed. It is a sanction provided for in advance that the civil code calls a “Penalty clause”. However, the law provides that the judge can always moderate it if it is excessive.
No harm
In the case presented to the Court of Cassation, the court considered that the Telco OI suffered no prejudice since in the absence of payment, it no longer provided any service. The operator claimed that by having conceded a reduction on the telephone provided, he was losing money in the event of an early termination, which justified the amount requested.
The Court of Cassation dismissed the argument : the court seised “was sovereign” to assess the existence and importance of any damage taking into account the rights and obligations of each. And to recall that the court highlighted the “manifest disproportion between the extent of the damage actually suffered by the company and the amount of compensation stipulated”.
In the end, the consumer must pay 108 euros to the supplier, instead of the 621 euros initially requested. What gives a case law to consumers who want to change operator before the end of their contract.
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