Distance and off-premises contracts by vow15418

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									 Distance and off-
premises contracts
 Prof. Dr. Peter Rott,
 University of Bremen
                Overview

   Harmonisation vs. substance
   Laudable improvements
   Delineation problems leading to legal
    uncertainty
    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
    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.
    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.
    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
       Good example for different
              treatment
   No payment for services rendered before
    the withdrawal
    • Distance seller can protect himself by seeking
      the consumer’s 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)
       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
             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)

								
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