The Supreme Court of the Czech Republic in its judgement in Case No. 33 Cdo 42/2021, dated 25. 1. 2022 commented on the legal regulation of abnormal harm (laesio enormis) under Section 1793 of the Civil Code, or on the threshold representing abnormal harm.
According to the Supreme Court, in the context of the current legislation, which does not expressly provide for any specific threshold representing abnormal harm, the prohibition of harm by more than half can be considered as a default rule. In other words, the gross disparity of mutual fulfilment will be a threshold of approximately half of the mutual fulfilment (range of 45 to 55%), from which the court will deviate only if there are special reasons to do so.
The comparison of mutual fulfilment (the disparity test) is based on the usual price at that place and time. This is primarily a comparison of the ratio of the usual price of fulfilment to the consideration, but other circumstances may also play a role. It is not excluded that in a particular case the court may find a gross disparity even where the ratio of the mutual fulfilment exceeds the above-mentioned range, however, this will be the case in exceptional situations where the rejection of the claim of the harmed partywould mean excessive harshness or where even a ratio exceeding half of the mutual fulfilment (or the above-mentioned range) will be found to be contrary to the principles of justice in a particular case. If the legal certainty of the parties to the contract is not to be impermissibly compromised, the provision in question should be interpreted restrictively with the result that, when in doubt, the court should be inclined to conclude that there is no abnormal harm, This restriction must therefore also be applied to the other circumstances under consideration. It is clear from the nature of the criterion for assessing abnormal harm that only circumstances relating to the contractually agreed proportion of the amount of fulfilment at a given place and time can play a role. The burden of proof is on the side of the party claiming the harm.
