Distance and offpremises contracts

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Distance and off-premises contracts

• Prof. Dr. Peter Rott, University of Bremen

2
Overview

• Harmonisation vs. substance
• Laudable improvements
• Delineation problems leading to legal uncertainty

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Harmonisation v. Substance?

• Proposal Streamlining, in particular, of the
  right of withdrawal
• Question Is this justified? Do we regulate the
  same type of consumer and the same type of
  situation?
• Internet consumer said to be experienced and
  know about his right of withdrawal, Doorstep
  consumer often vulnerable (e.g. elderly
  consumers)
• Doorstep purchasers are not in a hurry, whilst
  internet consumers often are

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Harmonisation over substance 1

• 3 months period where trader has failed to inform
  about the right of withdrawal
• Okay for distance selling
• Danger of abuse by doorstep traders
• Delineation issue Would general concepts of
  contract law such as fraud still apply?
• Proposal No limit for doorstep selling where
  information is completely missing 3 months where
  information is inaccurate.

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Harmonisation over substance 2

• Liability for diminished value of goods resulting
  from normal use during the withdrawal period
• Distance selling danger of abuse by consumers
• Doorstep selling no danger of abuse
• Liability must be subject to a warning (including
  figures on potential liability)! Otherwise bad
  surprise for consumers, resulting in lack of
  confidence
• Harmonisation? Figures could vary greatly
  from one Member State to the next.

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No harmonisation where it would be justified

• Begin of the withdrawal period in cases where the
  doorstep purchaser cannot see the actual product
  (like a distance purchaser) see also DCFR
• Proposal streamlining with distance selling,
  i.e. begin of the withdrawal period after
  delivery

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Good example for different treatment

• No payment for services rendered before the
  withdrawal
• Distance seller can protect himself by seeking
  the consumers express consent (resulting in the
  loss of the right of withdrawal)
• Doorstep seller can protect himself by waiting
  until the period has expired (no hurry!)
• Useful to prevent abuse (OFT study on
  double-glazing, conservatories and the like roof
  repairs)

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Improvements of consumer protection and legal
certainty

• Doorstep selling information obligations (in
  particular, where a catalogue is used)
• Doorstep selling deletion of exception for
  solicited visits (saves trouble)
• Standard information form and standard withdrawal
  form

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Delineation issues

• Application of general concepts such as fraud vs.
  fix 3 months extended withdrawal period
• Overlapping rights of withdrawal, e.g. from UCP
  Directive 2005/29/EC where they can be introduced
  as sanctions for unfair commercial practices
• Public law limitations to doorstep selling, such
  as prohibitions (A-Punkt Schmuckhandel) or
  licensing requirements (Burmanjer)