учебный год 2023 / Kalamees, Lilleholt, Early Termination of Consumer Contracts for the Leasing of Cars under Estonian and Norwegian Laws

a sales compensation or in some other way have the same economic function as a sale of goods on credit. Some authority for this can be found in a Supreme Court judgment, albeit in relation to another rule.39 It seems that the Consumer Ombudsman has chosen not to push this issue as termination for personal force majeure is accepted by businesses.

The second contract clause on the consumer’s liability in other cases of early termination states that the lessor is entitled to damages for two separate groups of expenses and loss:

a)rent due at the time of termination of the lease period and some other payments related directly to the actual use of the car;

b)the lessor’s loss caused by early termination, limited to a maximum of the total of the outstanding rent payments, although not more than six months’ rent.

The loss under b is reduced by the amount obtained by the lessor from sale of the car (or, where relevant, other payments to the lessor), after deduction of costs and of the value of the car at the end of the lease period as stipulated in the leasing contract. The latter deduction deserves an explanation: as the total rent is meant to amortize only part of the value of the car, it would not be correct to reduce the lessee’s liability by the total value of the car at the time of termination. The lessor would have benefited from the stipulated remaining value had the contract been correctly performed by both parties. A simplified example is given as follows: the outstanding rent is capitalized as 100; the car is sold for 250; the value of the car on expiry of the agreed lease period is stipulated in the contract as 200. Here, 50 (250−200) is deducted from the outstanding 100, and the lessee is liable for the remaining 50.

The interesting point in a comparison with the situation in Estonia is the express statement in the clause that the reduction of the lessee’s liability depends on what the lessor actually obtains through the sale of the car. The content of the clause in this respect seems to correspond closely to the content of the clauses that have been set aside by the Estonian Supreme Court. In Norway, it seems that consumers have not objected to calculating damages based on the price the lessor obtains by a sale, while the issue has resulted in several Supreme Court judgments in Estonia.

39 Noregs høgsterett (Norwegian Supreme Court) 13 Feb. 2001; Norsk Retstidende 2001, p 232.

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4.Possible Explanation for the Different Consumer Reactions in Estonia and in Norway

Why do seemingly similar clauses concerning the procedure for finding the value of the car on termination of the leasing contract lead to such different outcomes in Estonia and Norway? While there are several Supreme Court cases in Estonia assessing the clause as unfair, no litigation at all concerning this matter has arisen in Norway.

We have no information indicating that the market for used cars is more transparent in Norway than in Estonia. Even if there were such differences, they would be unlikely to explain the very different reactions to the clauses. The decisive argument in Estonian court practice – that the clause makes the outcome dependant on the lessor’s efforts and diligence in selling the car – would still be relevant in both countries.

Another possible explanation could be that the rules on terminating the contract by the consumer are more flexible in Norwegian law, allowing termination with one month’s notice in case of personal force majeure and limiting liability to six months’ rent in all cases. The result might be that the outcome is less harsh to the consumer, irrespective of the procedure for finding the car’s value. We have not had the opportunity to investigate how often liability exceeds six month’s rent in Estonian cases, but it seems likely that the different rules on termination may be an issue in some cases.

One difference between Estonian and Norwegian laws regarding leasing contracts is the fact that these contracts are regulated as a separate type of contract under the Estonian LOA, while the relevant contracts are not regulated at all in Norwegian legislation. The Estonian regulation includes rules on the procedure for finding the value of the leasing object in order to calculate the lessee’s liability in cases of early termination.40 The possible effects of this are twofold. First, the deviation from a legislated rule – even when the rule is not mandatory – calls for a scrutiny by courts in order to assess whether a clause is unfair according to Directive 93/13/EEC.41 Second, legislation may make consumers more aware of the issue and thus lead to wariness where alternative solutions are used.

Another reason for such differences might also be related to different rules on unfair contract terms in both countries. While Estonia has clear and detailed regulation on the matter, including a ‘black’ list of terms deemed to be unfair, Norwegian legislation has a general clause that has not been used much in

practice.42 The ‘grey’ list in the annex to Directive 93/13/EEC is not well known

among Norwegian lawyers and consumers. To the Estonian consumer, it is

40Article 367(3) LOA.

41See, in particular, C-415/11 Aziz, para. 68.

42See s. 2.2.3.

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probably somewhat more straightforward to evaluate which terms may be considered unfair. At the same time, it is questionable whether many consumers accord such consideration to the matter. It is more likely that the Estonian lawyers are accustomed to dealing with the rules on unfair contract terms clearly set out in the LOA and that the question of standard contract terms is raised more often in consumer cases for this reason. Further, Estonian courts have, on many occasions, recognized their obligation to review the standard contract terms ex officio in consumer leasing cases,43 as well as in cases regarding leasing contracts not concluded with consumers.44 Estonian courts have not only recognized their obligation to review the content of the terms but also the obligation to determine whether the terms used are standard contract terms.45 The duty to assess the fairness of clauses in consumer contracts ex officio has not had much attention in Norwegian courts.

On the other hand, the role of the Consumer Ombudsman in the Norwegian system is remarkable. The clauses limiting the consumer’s liability to six months’ rent and even to one month’s rent in cases of personal force majeure could hardly have been obtained by a court under the general rules on unfair terms. This shows that public law measures may sometimes be more efficient in promoting consumer protection than general civil law regulation.

The possible explanations provided here are ‘legal’, in the sense that they concern differences in legislation and in the transposition of the Directive on unfair terms, as well as differences in the practices of consumer protection authorities, which have resulted in dissimilar standardized contract terms. Such ‘legal’ explanations are of particular interest because they result from deliberate choices by states and indicate the possibility for a state to choose otherwise in the future.

Several other factors may, of course, contribute to differing results concerning the frequency of litigation and the assessment of the lawfulness of relevant contract clauses. One might ask whether the level of income plays a role: are the amounts in question of less importance to the typical Norwegian lessee than the typical Estonian lessee? It may be so, but we doubt that this is a very important factor, given that the clauses are controversial precisely in cases where the lessee encounters difficulties in performing the contract. Further, one might ask whether Estonian contract parties in general are more prone to engage in

43See, for example, the decisions of the Estonian Supreme Court of 20 May 2011, 3-2-1-52-11, p 15; 5 Mar. 2012, 3-2-1-11-12, p 12, http://www.nc.ee/?id=11&tekst=RK/3-2-1-11-12 and 06.02.13, 3-2-1-182-12, p 12, http://www.nc.ee/?id=11&tekst=RK/3-2-1-182-12.

44Decisions of the Estonian Supreme Court of 17 Jun. 2008, 3-2-1-56-08, p 13 and 29 Apr. 2008, 3-2-1-33-08, p 17.

45Decision of the Estonian Supreme Court of 15 Jan. 2014, 3-2-1-156-13, p. 10, http://www.nc. ee/?id=11&tekst=RK/3-2-1-156-13.

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lawsuits. We have not analysed civil litigation statistics for this purpose – such analysis would entail considerable methodological challenges – but from our general knowledge of the societies in question, we regard the hypothesis as rather counter-intuitive. Faced with the differing results of seemingly similar rules in two states, some scholars might be tempted to seek an explanation in what is loosely termed ‘legal culture’. It is a captivating expression, as it is very vague and has been given many different meanings.46 It is self-evident that Estonia and Norway are dissimilar in their history, language, climate, economy, legal traditions, etc., and that divergences of this kind may influence legal matters. However, this observation does not offer much by way of an explanation in the case of an everyday issue like the present one. Even if one accepted ‘legal culture’ as an explanation, this would not be an operative conclusion. It would still be necessary to consider whether differences in behaviour and in results are desirable or not, and – if not – what is to be done about it. Appropriate tools would typically include legislation, modes of transposition of EU law, organization of consumer protection authorities, etc. Critical analysis of these options seems more important if the goal is to solve legal problems rather than merely discuss them.

This finally brings us to the question of whether this area of consumer law should be harmonized in EU legislation. The Consumer Credit Directive (2008/48/EC) does not apply to the consumer leasing contracts described here.47

Nor is there any parallel to the Consumer Sales Directive (99/44/EC) for leasing contracts and there is not much of relevance for these contracts in the Consumer Rights Directive (2011/83/EU). Leasing contracts will not be covered by a possible Common European Sales Law either.

Without doubt, this question needs more thorough analysis than the limited scope of this article allows. Leasing contracts have only rather recently become a matter of consumer law; traditionally, such contracts were offered only to businesses. At the very least, harmonization seems well worth considering.

46See the many contrasting definitions in the different contributions to the volume K. PURNHAGEN

& G. HELLERINGER, Towards a European Legal Culture (Baden-Baden: Nomos, 2014). For a sober presentation of the problems with ‘legal culture’ as an analytical tool, see R. MICHAELS, ‘Legal Culture’, in: ed. J. Basedow et al., The Max Planck Encyclopedia of European Private Law

(Oxford: Oxford University Press, 2014), pp 1059–1063. 47 Dir. 2008/48/EC, Art. 2(2)(d).

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