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Contract law
The examination of a contractual clause remains possible despite the prescription
Publié le 01 août 2025 - Directorate of Legal and Administrative Information (Prime Minister)
Since no court has ruled on it, the court must examine the possible unfairness of a contractual term. This is what the Court of Cassation indicates in a judgment issued on June 12, 2025 published in the bulletin.
A bank granted a mortgage to Mr. X. Following the failure to pay the agreed installments, the bank initiated a foreclosure procedure.
Mr X. refers the matter to the court because he considers several clauses in the loan agreement he concluded with the bank to be unfair.
The Court of Appeal dismissed Mr. X.'s applications on the ground that a previous judgment had found his applications to be time-barred. He is appealing to the Court of Cassation.
The Court of Cassation overturns and annuls the decision rendered on appeal. In its view, the Court of Appeal should have examined the unfairness of the terms at issue despite the prescription of the applicant's action.
The Court applies here the case-law of the Court of Justice of the European Union. The Court acknowledges that the force of res judicata does not prevent the court from assessing the possible unfairness of a term in the event that no review of this clause has been done previously.