Domiciliul consumatorului, drept criteriu de stabilire a competenţei teritoriale a instanţelor. (In)eficacitatea clauzelor neuzuale derogatorii / Consumer’s domicile, as a criterion for the selection of the courts’ territorial competence. (In)efficiency of the derogatory unusual terms

Abstract

While establishing the exclusive territorial competency, antagonistically regulated as compared to the case of the alternative territorial competency, the provisions of article 121 of the Civil Procedure Code favour the court from the consumer’s domicile, for the judgement of the professionals’ requests against consumers, the applicability of these legal provisions being non‑depending of the contractual or extra‑contractual nature of the substantial litigious motifs. Situated at the antipode of the permissive legal solution applicable in cases in which the consumer occupies the plaintiff’s procedural position in the requests on contractual performance, nullity of contractual provisions, annulment of agreements, judicial termination of contracts, unilateral termination of a business to consumer contract or tort actions aiming at the establishing of the professional’s liability for the prejudice caused to consumers, as resulting from the provisions of article 113, par. (1), pt. 8 Civ. Pr. Code, in the hypotheses in which, on the contrary, the professional introduces a judicial request as plaintiff against the consumer as defendant, the legal texts do not provide for an option to select the court’s territorial competency, since the cited legal provisions postulate an exclusive territorial competency of the court from the consumer’s domicile. The derogatory contractual provisions in the field of territorial competency may be seen as valid as long as they are kept in the perimeter of the legal limits on temporality and substantiality, from the perspective of the origins of consumer’s right to compensation of damages, as resulting from the provisions of the second phrase of article 121 Civ. Pr. Code, corroborated with the provisions of article 126, par. (2) Civ. Pr. Code, while placing the derogatory contractual terms related to courts’ territorial competency under the exigences of being proposed to consumers only „after the generating of the consumer’s right to compensation”.

Keywords

• consumer
• domicile
• territorial competence
• unusual clauses
• standard terms