“Distant Selling” and “Off-premises Contract” Consumer Rights

Apr 3, 2017News & Analysis

Both European and Bulgarian Law recognize different types of legal subjects that benefit from additional legal protection. Such subjects are usually individuals whose role in the market put them in vulnerable and disadvantageous position in comparison to their counterparties. For instance, an employee is entitled to additional legal remedies against his employer, who is supposed to be in superior and stronger position. Another example is the insurance relationship between the insurer and the insured one, where the insurer has undertaken the risk to provide compensation in case of an actual damage. What the employees, the insured individuals and the consumers have in common is the fact that they are considered to be the economically weaker party in the relations they are involved in.On a daily basis consumers enter into contract with an economic stronger counterparty – traders. For this reason, consumers enjoy special legal protection regulated by national law as well as by international law.

Consumer protection in granted by both procedural and substantive law. Good example in this direction is the Brussels I Bis Regulation , which, in addition to the general jurisdiction providing that defendants should be sued in the Member State they are domiciled in, adds special jurisdiction when consumers are involved. Similar rules governing the local jurisdiction are also set in the Bulgarian Civil Procedure Code (CPC) where Art. 113 provides for the possibility of the consumer filing a claim against the defendant before the Court in the place of residence of the consumer .

As for the substantial law, the best example here is the 2005 released Consumer Protection Act (CPA). With the CPA the legislator wants to emphasize and announce its special attitude towards this part of market participants. Consumer protection, powers of the government authorities and different consumer association activities – all these fall under the scope the CPA. As regulated by this Act “consumer is every natural person, who acquires goods or demands services, for a purpose which can be regarded as being outside his trade or profession, or a natural person who concluds a contract under this Act, for a purpose which can also be regarded as being outside his trade or profession”.

Nowadays, undoubtedly one of the most common ways for concluding a sale purchase agreement is through the so-called “distant selling” and “off-premises contract”. These two types of sale could help the modern consumer to buy time and to retain a lot of other benefits. But, as it often happens, positives always come with some negatives and the legislator has tried to arrange the consequences of such negatives in Chapter 3 of CPA. In particular, most of the problems come from the fact that the consumer–buyer and the trader–seller are located in different and remote places. While the consumer concludes the order staying at his home or office, the seller performs his duties from premises such as storehouse, etc. Usually the connection between parties is carried out via the internet or any other means of communications. The necessity of additional consumer protection derives from the difference this kind of purchase agreement has in contrast with the normal sale. Often the consumer is not able to see and explore the product he is purchasing, and the only information he receives is the one given in the product description. The consumer finds out whether the wished product possesses the described characteristics only after the agreement is finalized and the delivery is competed. It is not unusual for the consumer to experience some “unpleasant surprise” when the product is delivered. As it may happen, the purchased product either does not respond to the given description or totally differs from the one the trader claimed to have offered. If this is the case, there is not a counter-party whom the consumer could face for a quick dispute settlement. In order to receive the desired product, the consumer needs to find the person who could provide him with the necessary instructions – fulfilling which may eventually lead him to obtaining a product with the desired characteristics. Usually, at this stage of the occurred problem the trader (seller) is not willing to cooperate, nor is he ready to take responsibility. The reason behind such behavior is because the trader believes his engagements and obligations are accomplished simply by the provided delivery. This is the point where the law grants additional rights of protection to the economically weaker party. Awareness of these rights could easily save consumers plenty of time, money and unpleasant feelings. Moreover, if one of the parties (the consumer) has rights, its counterparty has corresponding obligations – knowing which is also important.

Distant selling presupposes a couple of obligations assigned to the seller in order for a valid sale-purchase agreement to be concluded. Part of the obligations are related with the sellers duty to provide the buyer with some essential information about the contract and the seller itself. Firstly, a very detailed description of the goods/services should be presented to the buyer. The mentioned information also includes: i) the official name of the seller (or of his enterprise); ii) the current address and contact details of the seller; iii) the final price or how the final price is calculated; iv) the purchase and delivery costs; v) shipping and delivery terms; vi) payments; vii) termination rights of the consumer; viii) warranty; and any other information provided in Art. 46 (1) CPA. What is more, all of the information should be in Bulgarian. Art. 46 (5) CPA states that the information is an integral part of the contract, and some costs and terms not being included in the contract are not due. Off-premises contracts bear the same obligatory characteristics – the seller should present the same information (may it be on CDs, USBs, emails, etc.). What is more, the seller is also obliged to provide a copy of the contract to the buyer. Depending on how an off-premises contract is concluded, the seller is allowed to submit all of the information via another appropriate means. For instance, if the consumer in using the internet to order the goods/services, then the seller is obliged to provide the required information in a clear manner – closely to the ordering button. The consumer should be aware of the fact he is concluding the order and paying the price. Not fulfilling this obligation of the seller renders the consumer not legally bound by the contract. Furthermore, the seller should display clearly the way of payments and the delivery terms and costs. If the off-premises contract is concluded by phone, the binding effect arises from the moment of signing it by the consumer. However, the consumer still possesses plenty of protective rights even after the conclusion of the contract.

The unconditional right of the buyer to terminate the distance selling and the off-premises contract is one of the most important consumer rights, but in the same time it is most commonly out of the information provided by the seller. According to CPA every consumer has the right to terminate such a contract without the necessity to state a reason, a blemish or a defect. Exercising this right encompasses neither compensation, nor forfeit, nor the payment of any other costs by the consumer. The period during which the right of termination could be exercised is 14 days and it is a limitation period. The starting date is the day when the contract is concluded. As said above, the right of termination is one of the most important consumer rights and, therefore, the seller has an obligation to inform the buyer. Hence, not fulfilling the obligation leads to consequences which put the consumer in preferable position the seller should endure. Such a consequence is the extension of the 14-days limitation period to an 1-year period. The termination right could be exercised by the consumer in a very cost-efficient manner – only by sending a notification to the seller. An example of the notification is annexed to the CPA. Afterwards, the seller has another 14-days period to pay back the whole amount of the purchase, as well as all the delivery costs. How and where the goods would be returned, altogether with the question who bears the returning costs, depend on the contractuals terms. Despite the abovementioned, the termination right of a consumer shall not be used in: i) service agreements within which the service has been delivered, or the execution has been started and a previous approval has been given by the consumer himself; ii) contracts for individually crafted and delivered products; iii) contracts for short shelf life goods; iv) disputes about packaged goods which could not be returned; v) contracts about beverages; etc. In order for full and more effective consumer protection a special governmental body has been created – Consumer Protection Commission (the Commission). The Commission is a legal entity with a budgetary support and is headquartered in Sofia. The Commission has supervisory powers towards unfair practices and possesses different collective redress mechanisms. Moreover, it performs supervisory safety checks on the goods/services in accordance with the CPA.

Altogether with the Commission (which acts as a governmental body) different civil organizations aim at protecting and enhancing the consumer protection. Such an organization is the Consumer Association – a non-profit association which actively participates in legislation procedures; notifies the supervisory authorities about breaches of consumer rights; assists in dispute resolutions; and brings civil actions before court. Another organization worth mentioning is the National Committee for Consumer Protection which is an advisory body to the Ministry of Economy. Its functions are mainly directed into consulting the Ministry about different consumer protection measures, taking part in legislation procedures, issuing statements on legal projects, etc.

Every single individual as a consumer is entitled to lodge a complaint, to issue an alert or just to express opinions in case of violation of his consumer rights. The complaints, alerts and opinions could be send either in written or electronic form and must include the following, legally regulated contents: i) the body to whom the documents are addressed; ii) the address of the complainant; iii) details of the traders against whom complaints are made; iv) signature and v) evidence. Last but not least, the consumers are to bare into mind that the consumer protection – nowadays known as “law of consumers” – incorporates also a number of European Union acts, which further add different and enhanced consumer protection. As stated in Art. 15 from the Obligations and Contracts Act, European legislation has a superiority over the Bulgarian law and thus, every consumer can rely directly on the EU Regulations and Directives when searching for protection of his rights.