Withdrawal from the contract within 14 days - is the entrepreneur entitled?
The withdrawal from the contract was mostly used by consumers, especially when it related to internet or telephone transactions. From 2021, entrepreneurs can also take advantage of this benefit - let's check on what terms withdrawal from the contract is allowed for business customers.
What is withdrawal from the contract?
Pursuant to Art. 395 of the Civil Code, it can be stipulated that one or both parties will have the right to withdraw from the contract within a specified period. They are performed by a declaration made to the other party. If the right of withdrawal is exercised, the contract is considered null and void. What the parties have already provided is returned unchanged, unless the change was necessary within the ordinary management. Adequate remuneration is due for the services provided and for the use of things.
Withdrawal from the contract is a form of early termination of the obligation by one or both parties to the contract. In practice, it mainly concerns fixed-term contracts. Withdrawal, however, cannot be equated with the termination of the obligation - in the first case, the contract is completely canceled from the very beginning, and the termination does not have such an effect (the contract is terminated, but we consider it existing).
Judgment of the SA in Szczecin of July 10, 2019 (file reference number I ACa 565/18):
As soon as the declaration of withdrawal is effective, the obligation bond between the existing parties ceases to exist, so there is no longer a subject for which the withdrawing party could submit a declaration of withdrawal of withdrawal, and the party to which the declaration would be addressed. As a result of withdrawal, the situation arises as if the contract was not concluded at all, i.e. the contract has no retroactive legal effects.
The right to withdraw from the contract
The possibility of withdrawing from an existing obligation appears primarily when the parties allow it by an appropriate contractual provision. However, the legislator introduced the principle of withdrawal from the contract by virtue of the law itself, regardless of whether the contract contains an appropriate provision on this subject. Of course, it is about withdrawing from a distance contract, i.e. outside the business premises - e.g. via the Internet, telephone or by correspondence.
Until now, however, the right to withdraw from such a contract was available only to consumers as part of obligations incurred outside the business activity (for private purposes). Pursuant to Art. 14 of the Act on consumer rights, a consumer who has concluded a distance or off-premises contract may withdraw from it within 14 days without giving any reason and, as a rule, without incurring costs.
It is worth recalling here that, in accordance with the provisions of the Civil Code, a consumer is a natural person who performs a legal transaction with an entrepreneur that is not directly related to his business or professional activity.
Entrepreneurs were excluded from the above regulation, therefore they did not have the right to withdraw from the concluded contract, unless it was expressly permitted in the content of a given contract.
Withdrawal from the contract by the entrepreneur
The definition of a consumer has not changed, but from January 1, 2021, entrepreneurs have been able to withdraw from distance contracts, just as consumers who are natural persons have been able to do so for many years.
The basic condition, the fulfillment of which will entitle to exercise the right to withdraw from a contract concluded by a person running a business, is the lack of a professional nature of a given obligation. In other words, the contract that can be withdrawn may not directly concern the industry and specialization in which a given entrepreneur operates as a consumer.
Mr. Jan runs a sole proprietorship and provides graphic services. He decided to buy a (online) printer company to help with his professional activities. In this case, it will not be possible to withdraw from such a contract, because its subject is directly related to the professional activities of the buyer.
Mr. Jan runs a sole proprietorship and provides graphic services. He decided to buy (online) hydraulic parts for a company - but it is not related to his professional activities. In this case, there is a right to withdraw from a distance contract, because its subject is not directly related to the professional activities of the buyer.
Private Limited company.specializing in career counseling, decided to purchase (online) a package of teaching aids for the children of its employees. Although the purchase is not directly related to the activities of this company, it will not be able to exercise the right to withdraw from the concluded contract - commercial companies are excluded from the provisions of the Act on consumer rights.
The amendment to the Act on Consumer Rights allows entrepreneurs to withdraw from distance contracts, but only on condition that they conduct their own business activities. Running an enterprise in the form of a commercial law company (general partnership, partnership, limited partnership, limited joint-stock partnership, limited liability, joint-stock company) unfortunately excludes the possibility of exercising the consumer right to withdraw from the contract.
Start a free 30-day trial period with no strings attached!
The professional nature of the purchase and the right to withdraw from the contract
We already know that the entrepreneur has the right to withdraw from a distance contract only if the transaction is in no way related to the scope of his activity. However, who and how will check whether this condition is met?
The obligation of control has been shifted to the sellers - they have to take care of whether, in a given case, the entrepreneur has the possibility to withdraw from the concluded distance contract. In practice, this can be done by analyzing the PKD codes of the entrepreneur who is the buyer. Unfortunately, when a given activity is very broad, and the entrepreneur uses a huge number of PKD codes, such checking may take a considerable amount of time. However, the legislator does not currently intend to solve this problem. In the case of large transactions made by large companies, sellers will have to face quite a challenge.
The deadline for withdrawing from a distance contract
Entrepreneurs entitled to withdraw from distance contracts may exercise this right within 14 days from the receipt of goods or performance of the service ordered by them. The same term applies to consumers who are natural persons who do not conduct any business activity.
Pursuant to Art. 28 of the Act on consumer rights, the period for withdrawing from the contract begins:
for a contract in which the entrepreneur issues an item, being obliged to transfer its ownership - from taking possession of the item by the consumer or a third party designated by him other than the carrier, and in the case of a contract which:
covers many items that are delivered separately, in batches or in parts - from taking possession of the last item, batch or part,
consists in regular delivery of items for a specified period of time - from taking possession of the first item;
for other contracts - from the date of conclusion of the contract.
Remember, however, that if the consumer has not been informed by the entrepreneur about the right to withdraw from the contract, this right expires after 12 months from the date of the contract or receipt of the goods / performance of the ordered service. If the consumer has been informed by the entrepreneur about the right to withdraw from the contract before the expiry of the 12-month period, the deadline for withdrawing from the contract expires after 14 days from providing the consumer with information about this right.
From January 1, 2021, entrepreneurs who make purchases for the company outside the seller's premises (via the Internet, by phone or by mail), may use the right to withdraw from the concluded contract on the same terms as consumers who are natural persons. The condition is, however, that such a purchase should not be related to the conducted activity, and that the enterprise should not be conducted in the form of a commercial company. The deadline for withdrawing from the concluded contract is 14 days and is counted either from the date of its conclusion or from the moment of delivery of the goods or performance of the ordered service.