Distance contracts

Information duty of the entrepreneur

One of the most important obligations an entrepreneur has towards consumers is the information duty. It means that the entrepreneur must inform the consumer of the various facts listed in the Civil Code before the contract is concluded.

In particular, the consumer should know the following at the time of confirming the order:

• Seller’s identity
• Exact price, including taxes and fees
• Payment and shipping method
• Terms and conditions and procedures for withdrawal, complaints, etc.

The latter information is often hidden in business terms and conditions, which the entrepreneur is obliged to provide to the consumer in textual format together with the text of the contract (in practice, you usually agree to them by ticking a box when ordering). All of the entrepreneur’s communications to the consumer must be made in a clear and comprehensible manner in the language in which the contract is concluded. The entrepreneur should avoid technical terms commonly used in a particular field that an average consumer may not understand. Failure to provide the consumer with clear and comprehensible communications constitutes a violation of the information duty, which gives rise to the consumer’s right to withdraw from the contract under more favourable conditions.

Withdrawal from contract

If the contract has been concluded by means of distance communication, the consumer is generally entitled (subject to the certain statutory exceptions below) to withdraw from the contract without stating a reason within 14 days. However, if the last day of the time limit falls on a Saturday, Sunday or public holiday, the last day is postponed to the next subsequent business day.

This time limit commences upon:

• Acceptance of the goods in the case of a purchase contract
• Acceptance of the last delivery of goods in the case of a contract on the delivery of several types of goods or several parts
• Acceptance of the first delivery of goods if the subject-matter of the contract is a regular recurring delivery of goods

It should also be noted that if the consumer has not been informed of this right, the time limit for withdrawal is extended by one year (i.e. a total of one year and 14 days). If the entrepreneur informs the consumer subsequently, the 14-day time limit commences at the time when the additional information is provided to the consumer.

However, along with the withdrawal, the consumer must return the purchased goods to the entrepreneur without undue delay. On the other hand, the entrepreneur is obliged to return the money back to the consumer within 14 days of the withdrawal in the same manner as it was received from the consumer. The cost of transporting the goods from the consumer to the entrepreneur is fully borne by the consumer, but this obligation is subject to the consumer being notified of this fact. The consumer cannot withdraw, for example, from a contract on the provision of services if the services have been performed with the consumer’s prior express consent (e.g. hairdresser’s services), on the delivery of goods customised to the consumer (e.g. engraving the consumer’s initials on a product), on the delivery of perishable goods (e.g. preparation of sandwiches for a company event), etc. This is because such withdrawal would be considered unreasonable towards the entrepreneur in these statutory cases.

Complaints

In the event the goods are defective (i.e. do not meet the quality or quantity, have hidden defects, etc.), you can of course file a complaint. However, sellers often try to outsmart the consumer by using various “tricks” to either discourage the consumer from making a complaint or at least make it more difficult for the consumer. These practices include, for example, the necessity to present a warranty certificate and additional conditions for making a complaint (e.g. delivery in the original box), extending the time limit for complaint processing with regard to holidays in summer, paying the costs associated with the complaint, etc.

The fact is that warranty certificates are not much used today, and if so, it is only for higher value items. Remember that as a consumer, you are only obliged to prove where and when you bought the goods and you do not need a warranty certificate to do this; for example, an invoice for the purchased goods is sufficient. As for any additional conditions, the entrepreneur will not succeed here either because he is obliged to inform the consumer about the application of these conditions in advance, not only when a complaint is made. The consumer protection legislation also stipulates non-exceedable time limits for the settlement of complaints and grants the consumer the right to be reimbursed for the costs reasonably incurred in connection with the complaint.

There are four ways to settle a complaint:

• Repair
• Replacement of goods
• Discount on the purchase price
• Refund

Which method of settlement is selected depends, in particular, on whether the breach of the contract is material or immaterial. In the first six months after the purchase of the goods, the consumer is in a more advantageous position (also in terms of the methods of settling the complaint) because he does not have to prove that the defect existed at the time of acceptance when this fact is assumed. If the entrepreneur does not agree, it is up to him to prove that the defect existed at the time of acceptance. In the period between the 6th and 24th months, the consumer is no longer in a more advantageous position and must therefore prove that the defect existed at the time of accepting the goods from the entrepreneur, which then determines the range of methods that can be used to settle a complaint. If the entrepreneur provides the consumer with a warranty, in other words, the entrepreneur undertakes that the item will be fit for its usual purpose or retain its usual characteristics for a certain period, a different regime applies. In such a case, the consumer does not have to prove that the defect existed at the time of accepting the product, but only that the defect occurred during the warranty period. It should be noted that if the warranty period or shelf life of the item is indicated on its packaging or in the advertising, it is deemed that a warranty is provided.

However, the most important thing is to always make a complaint in a timely manner. If the consumer detects a defect, the seller must be notified without undue delay. Defects can be claimed within two years from the date of delivery at the latest. Otherwise, the court would not grant the consumer the rights arising from defective performance if the entrepreneur argues that the complaint was made late. However, this is obviously not the case when the entrepreneur has intentionally performed defectively. For no one can profit from dishonest conduct.

What issues do we typically handle for clients in relation to distance contracts?

• How to conclude a contract remotely?
• What is the information duty of the entrepreneur?
• How to withdraw from a distance contract?
• When does the time limit for withdrawal from a distance contract start?
• What are the conditions for making a complaint regarding goods purchased remotely?
• Contracts concluded by phone and withdrawal from such contracts
• Authorisation by electronic signature
• Data boxes and electronic delivery of contracts
• Legal advice on the courts’ approach to distance contracts
• Deliverability of obligations arising from distance contracts