This article comes from Capital magazine

The case: while MadameP.multiplies the delays in payment of its supply of video on demand, the supplier the threat of a termination, accompanied by penalties, provided for in the contract.Will she have to pay the amount?

The lawyer's response: not necessarily, but he will have to go to court, to requalify this contractual clause as a penal clause, that is to say in a provision designed to force the consumer to execute his share of contract.

The judges have the power to moderate, when they consider it excessive, this type of sanction, as the Court of Cassation reminded a mobile operator who, after the termination for default of two contractsof a minimum duration of two years, and billed 27 euros per month each, had sought to take from his ex-cliente for 621 euros in penalties (1rechambre civil, judgment No20-10.825 of September 22, 2021).

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While this supplier pointed out that he had granted 200 euros in discounts on the terminals given with the subscriptions, and that the termination indemnity could not be lower than this amount, the magistrates have despite any sanction to 108 euros,or two months of subscription.According to the Court, the penalties provided, corresponding to the monthly payments not due to the first twelve months, increased in the quarter of the monthly payments of the following twelve months, were "manifestly excessive given the rights and obligations of each of the parties and the absence ofdamage suffered by the company no longer providing any service ".

Likewise, if the compensation required by MadameP's streaming platform.is disproportionate, it can be reduced.

By Barthélemy Lemiale, lawyer at the court, partner of the firm Valmy