Withdrawal from the contract in the case of electronic services - how to protect yourself?

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The right of withdrawal is one of the main rights consumers have when they incur off-premises obligations. The problem is that in the case of electronic services, such a law can seriously harm the interests of the seller. So how to effectively protect yourself against withdrawal from the contract in such cases?

Withdrawal from the contract

The conclusion of any contract does not mean that it must be binding on the parties forever. The law indicates that obligations can only be made for a specified period of time.Regardless of the duration of the contract, the legislator allows each party to effectively withdraw from it, provided that the contract contains appropriate provisions.

Withdrawal from the contract is a form of breaking the obligation with ex tunc effect, i.e. to the past. In this case, it results in the recognition that the given contract has not been concluded at all, and its parties should return everything they have provided to each other so far. The right to withdraw from the contract has been particularly highlighted in the Act of May 30, 2014 - Consumer Rights. According to its Art. 27, a consumer who has concluded a distance or off-premises contract may, within 14 days, withdraw from it without giving any reason and, as a rule, without incurring costs.

It is very important that withdrawal from a distance contract (e.g. via the Internet or by phone) does not depend on whether the content of such obligation includes information about this right. In other words, if the distance contract does not contain information about the right of withdrawal or the right is excluded, the consumer will still be able to effectively withdraw from the contract.

Judgment of the SA in Białystok of March 29, 2018 (file reference number I Aga 32/18)

Withdrawal is an exception to the principle of the durability of contractual obligations, hence the provisions of the contract, the provisions governing this legal institution and the parties' declarations made on their basis should be interpreted strictly. Such a unilateral declaration of will affects their property relations once they are made to another person. Reservation of the condition would result in depriving the legal protection of her interests, as the scope of effectiveness of such a declaration would not be known. The party to the obligatory relationship should immediately be sure about its legal situation.

The right to withdraw from electronic services

The right to withdraw from a distance contract is available to every consumer, and from January 1, 2021 also to the entrepreneur, unless the obligation relates directly to his business. The problem is that for some types of services and goods sold, such entitlement may work to the disadvantage of sellers.

If the trader offers his services on the Internet, performs them correctly and in accordance with the consumer's order, the right to withdraw from the contract within 14 days may cause damage to his business. The possibility of withdrawing from such contracts involves a considerable risk of the seller being used by the consumer - the buyer will use the electronic service, satisfy his needs, and then withdraw from the contract within the time required by law. In this case, the service provider will have to reimburse the entire price to the consumer, while the consumer has benefited from the entire transaction for free.

It turns out that the legislator noticed this problem and introduced exceptions to the right to withdraw from a distance contract. According to the content of Art. 38 Consumer rights, the right to withdraw from a contract concluded outside the business premises or remotely is not granted to the consumer in relation to the contract:

  • for the provision of services, if the entrepreneur has fully performed the service with the express consent of the consumer, who was informed before the commencement of the service that after the entrepreneur has fulfilled the service, he will lose the right to withdraw from the contract;

  • in which the price or remuneration depends on fluctuations in the financial market over which the entrepreneur has no control and which may occur before the deadline to withdraw from the contract;

  • in which the subject of the service is a non-prefabricated item, manufactured according to the consumer's specifications or serving to satisfy his individual needs;

  • in which the subject of the service is an item that deteriorates quickly or has a short shelf-life;

  • in which the subject of the service is an item delivered in a sealed package, which cannot be returned after opening the package due to health protection or hygiene reasons, if the packaging has been opened after delivery;

  • in which the subject of the service are items that after delivery, due to their nature, are inseparably connected with other items;

  • in which the subject of the service are alcoholic beverages, the price of which was agreed upon conclusion of the sales contract, and the delivery of which may take place only after 30 days, and the value of which depends on fluctuations in the market over which the entrepreneur has no control;

  • in which the consumer expressly demanded that the entrepreneur came to him to make urgent repairs or maintenance; if the entrepreneur provides additional services other than those requested by the consumer, or provides items other than spare parts necessary for repair or maintenance, the consumer has the right to withdraw from the contract with regard to additional services or items;

  • in which the subject of the service are sound or visual recordings or computer software delivered in a sealed package, if the package has been opened after delivery;

  • for the delivery of newspapers, periodicals or magazines, with the exception of subscription contracts;

  • concluded through a public auction;

  • for the provision of accommodation services, other than for residential purposes, transport of goods, car rental, catering, services related to leisure, entertainment, sports or cultural events, if the contract indicates the day or period of service provision;

  • for the delivery of digital content that is not recorded on a tangible medium, if the performance began with the consumer's express consent before the deadline to withdraw from the contract and after informing the entrepreneur about the loss of the right to withdraw from the contract.

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Protection against withdrawal from the contract

The legislator allows the seller to protect his interests and effectively block the consumer's right to withdraw from a distance contract, the subject of which are electronic services. However, it is necessary for the entrepreneur to inform the buyer about the inability to withdraw from the obligation before its performance. The consumer must know that he is not entitled to such a right in this type of transaction - he loses it with the purchase of a given service, at the latest when the service provider starts its performance.

Information on the exclusion of the right to withdraw from the contract, the subject of which are any electronic services, may be provided on the entrepreneur's main website, in the offer of a given service, as well as in the final contract. In the case of contracts concluded by telephone, it is important that the service provider informs the buyer in a clear and unambiguous manner that there is no possibility of withdrawing from the contract in this case. The consumer should confirm that he has understood the content of such a declaration and expressly consent to it if he wants to conclude a given contract - this must be done before submitting the declaration of purchase of a given service.

It follows that the consumer loses the right to withdraw from a distance contract if the following conditions are met jointly:

  • the parties conclude a service contract;

  • prior to the commencement of the service by the entrepreneur, the consumer has been informed that he or she will lose the right to withdraw from the contract after fulfilling the ordered service;

  • the consumer has given prior, express consent to the commencement of the performance by the entrepreneur;

  • the entrepreneur has fully completed the ordered service.

The possibility of blocking the right of withdrawal applies in fact to all services that can be ordered remotely (and therefore not only those that are electronic). Remember, however, that information about the loss of the right to withdraw from such a contract must be provided to the buyer by the seller or his employee. If the consumer learns about the possibility of losing such entitlement from the Internet, from friends or from the provisions of the act, but is not informed about it by the entrepreneur prior to the conclusion of the contract, the withdrawal may be used.

The best form of securing entrepreneurs against withdrawing their clients from distance contracts for electronic services is therefore a multi-stage buyer verification:

  • in the case of telephone calls, you must receive the clear assurance from the buyer that he understands and agrees to the loss of the right of withdrawal;

  • in the case of online transactions, it is necessary to provide clear information about the loss of the right of withdrawal on the seller's home page, in the offer of the service and in the final content of the contract to be signed by the consumer. A common practice is to display to the buyer information about the loss of the right to withdraw from the contract before the final ordering of the service - then a prompt appears that the consumer must respond to (e.g. "Ordering the service involves the loss of the right to withdraw from this contract, whether you agree to conclusion of such an agreement? ”).

Summary

The entrepreneur has the option to block the right to withdraw from a distance contract, the subject of which is any service (including an electronic service). For this purpose, however, he must clearly inform the consumer about the loss of such right, and then receive his consent to conclude the contract without the right to withdraw. These activities must be performed before the entire contract is finalized, i.e. before the purchase of a specific service. The entrepreneur may choose the manner in which he informs the consumer about it and how he receives his consent to resign from the right to withdraw from the contract - most often this takes the form of a recorded telephone conversation with the buyer or written information displayed just before the conclusion of the contract (or existing in description of the service offered for sale).