Distance transaction law on line with EU
Ah, the conveniences of modern life. With a couple of quick telephone calls or clicks of a mouse, you can pay your bills, check out the score of that all-important sports event and then order Chinese food to celebrate (or console yourself). Every one of these acts involves a transaction between a consumer and a business where the two parties have not necessarily met face to face. Since July 1, with the enactment of the Act on Protection of Certain Consumer Rights and Responsibility for Damages Caused by a Dangerous Product, Polish law now regulates these types of "distance" transactions. In addition to the issue of distance contracting, this act covers a broad range of consumer protection matters, including agreements concluded outside of an enterprise's premises (see "Legal Side" July 3-9).
One might ask the fundamental question: "What is a distance contract?" Fortunately, the act provides a relatively straightforward answer. All agreements concluded between a business and a consumer without the simultaneous presence of both parties, but through the use of "distance communications" are distance contracts. There is no closed list of what constitutes a means of distance communications. An agreement may be concluded through a written order form, catalog, telephone, radio, television, e-mail or other device. A contract via videophone (telephone with screen), telefax, e-mail, telephone or automatic call equipment, however, is only enforceable if the seller obtains the prior consent of the consumer.
When making an offer, the act requires a seller to provide specific information to the consumer. The seller must indicate clearly that it would like to enter into an agreement and to provide certain information about itself. At the very least, a seller must provide the consumer with information on its name and registered office, where it is registered and its registration number. The consumer also must receive basic information on the offered product or service, such as the price (including duty and taxes), the cost and terms of delivery, the complaint procedures and the terms and conditions of an agreement. Above all, a business must inform the consumer of the consumer's most important right the right of withdrawal. Finally, prior to commencing performance under the agreement, at the latest, a business is obliged to confirm in writing all of the information that the act requires to be given to a consumer.
Under the act, every consumer who has concluded a distance contract may terminate the agreement within 10 days without any liability. For goods, this 10-day period runs from the moment the goods are delivered, and for services, it runs from the day the parties enter into a service agreement. If the consumer has not been informed about this right by the seller, the term runs from the day he receives this information. If the consumer is never informed about the withdrawal right, it may be exercised up to three months later. It should be stressed that if a consumer terminates an agreement, the business must confirm in writing that it received the goods back.
It is not always possible to unwind a sale merely by returning something. The act recognizes a number of exceptions in which contracts may not be terminated by a consumer pursuant to the procedure described above unless the contract specifically permits the consumer to do so. A consumer has no right to withdraw from a contract if the seller started to perform the service with the consumer's consent prior to the agreed term. Moreover, a consumer may not return unwrapped audiovisual recordings and computer software. There is no right of withdrawal in service agreements in which the price depends solely on the fluctuations of the financial market (you cannot return stock if the price falls the next day). Additionally, consumers may not withdraw from contracts for customized services. Finally, a consumer may not withdraw from an agreement for a good that is perishable or for a service that, by its nature, cannot be returned. This includes such services as the delivery of press and gaming and lottery services.
If the parties have not agreed otherwise, the act requires the seller to deliver the goods or render the services within 30 days after the consumer executes the contract. When a good is out of stock, the seller should immediately, but no later than within 30 days from the execution of the agreement, notify the consumer of this fact and refund any payment received.
A distance contract may provide for the seller's right to substitute the good or service ordered with a good or service of the same quality and equal price. Again, the consumer has to be informed about his right of withdrawal. If I accept, however, a bottle of California cabernet sauvignon instead of the Australian shiraz that I ordered from my favorite wine merchant, he no longer has any responsibility for the fact that the wine I originally ordered was out of stock.
Not every distance contract, though, is subject to the new regulation. The act enumerates several exceptions. In particular, agreements concluded by means of automatic vending machines or other automated commercial premises are excepted (face-to-computer-screen is almost like, well, dealing with a sales clerk, except that the computer is programmed to smile every time). The act also does not apply to contracts involving financial services, insurance or banking. Nor does it apply to contracts concluded with telecommunications operators through the use of public pay phones. Real estate contracts, other than lease agreements and contracts concluded at an auction, do not fall under the auspices of the act. Finally, there is no right to withdraw from transactions for the delivery of food and services performed within a defined period of time, including the provision of accommodation, transport, entertainment and catering services.
The act serves to harmonize Polish law on distance contracting with the European directive on the protection of consumers. European Union (EU) countries have a long tradition of protecting consumers' rights. Now Polish businesses will need to comply with additional duties arising from the act creating a new Polish tradition of consumer protection while preparing the country for its economic future in the EU.
Judith Y. Gliniecki is of counsel with and the head of the technology group at Hunton & Williams' Warsaw office. She gratefully acknowledges the assistance of Alexandra Minkowicz-Flanek in the preparation of this article.
