Distance Selling

• Legal basis
• When do we shop from home?
• Parties to the contract
• Information-related responsibilities of the entrepreneur
• Can we return the goods?
• Can we cancel a distance contract?
• Can we withdraw from the credit contract?
• Do we pay a penalty for revoking the distance contract?
• Time of delivery
• Payment by credit card
• Do we have to pay for unsolicited goods??
• What should we remember?

It has become a common practice nowadays that valuing our time and comfort as well as technological conveniences more often than not we handle our affairs without leaving our office or home. We often use electronic media and other means of distant communication to order services, buy goods overseas at a cheaper price or book a hotel for vacation in the south of Europe.

Distance selling may become one of the most tangible signs of creating fully functioning European Internal Market. Consumers establish relations with overseas entrepreneurs even if a company branch operates in a country of domicile. This results in the need to increase consumers' awareness of legal protection against requesting payment for unsolicited goods by means of aggressive selling methods or selling with the use of new technologies.

Legal Basis

The problem presented below is regulated on the European level under the Protection of Consumers in Respect of Distance Contracts (OJ L 144, 04/06/1997 P. 0019 - 0027). For the contents of the Directive go to link to our legal acts.

Where The Act of 2nd March 2000 on Protection of Certain Consumer Rights and Liability for Damage Caused by Dangerous Products (Journal of Laws No. 22, item. 271, as amended) is the implementation of the Directive to the Polish legal system. For the detailed provisions of the Act go to link to our legal acts.

The problem of distance contracts is partly related to the regulations concerning e-commerce.

When Do We Shop from Home?

To start with, it should be underlined that an offer to conclude a distance contract can be made only upon our consent and without our obligation to incur any costs (at this stage).

Concluding a distance contract is characterised by the following:

• use of distance communication methods until the contract is concluded,
• negotiations and concluding the contract take place without the simultaneous presence of both parties (seller/supplier and consumer).

The fact that the shopping is made without the simultaneous presence of both parties makes it difficult to check the goods or judge the trader. Moreover, we are less experienced in distance shopping than in traditional so the result may be surprising to us.

Constant technological development prevents us from making a complete list of distance communication methods and therefore the Directive mentions them only for listing examples of distance sales, such as: printed/electronic order forms, serial letters, telephone, fax, catalogues, press adverts with order forms, e-mail, teleshopping. Exceptions that are not regulated by law are: public telephones and vending machines.

It should be underlined that the seller may use several different distance communication methods to conclude a transaction. For example, we are interested in an offer placed in a newspaper, after contacting with the entrepreneur we receive a contract detailed by e-mail and further negotiations are conducted by fax.

Check what is the difference between concluding distance contracts from buying away from business premises!

Parties to the Contract

The Directive protects contracts concluded between a consumer and an entrepreneur, who runs his business in this particular way. The consumer is a natural person that acts outside his regular business, economic or professional activity. The entrepreneur is a natural or legal person that operates within its business or professional activity.

Information-related Responsibilities of the Entrepreneur

1. the name of the entrepreneur and in case of payment in advance, also the entrepreneur's address;
2. the main characteristics of the goods or service;
3. price of goods of service including all taxes;
4. delivery charges;
5. method of payment, the delivery arrangements;;
6. consumer right to cancel the contract (exceptions go to the link: when can you cancel the contract?);)
7. costs of use of distance communication methods if they are calculated in a different way than in case of common connections;
8. in case of common connections;
9. how long does the offer or the price remain valid;
10. the minimum period you are tied into a contract for an ongoing service or temporary one (provision of such information applies only if needed).

The commercial purpose of supplying information cannot raise any doubts. Information should be transparent and clear for the consumer. Additionally, in case of telephone communication, the supplier has to introduce himself and clearly indicate the commercial purpose of the conversation.

After concluding the contract the consumer should obtain in writing or on any other durable available media (e.g. CD, diskette) confirmation of the above information (points a-f).

Regardless of any circumstances, the entrepreneur should present the following:

• written information regarding terms and procedures of withdrawing from the contract including exceptions,
• place to which the consumer may address complaints,
• information regarding after-sales service and valid warranty,
• conditions of the contracts, which have no fixed finishing date or which last for longer than a year.

Can We Return the Goods?

Yes, because buying a product with the use of distance communication methods we have no possibility of seeing the actual goods or be sure in respect of the character of services prior to concluding the contract. After the delivery it may turn out, for instance, that the product presented on the website made better impression or had different colour. In case of cross border selling we may not understand the description of the device or operating manual (supplied in a foreign language) therefore after the product delivery and after close examination we may want to return the goods.

Contrary to traditional shopping, when we are not entitled to return goods that are of satisfactory quality, we can return goods free from any defects. Know your rights about withdrawing from the contract!

Can We Cancel a Distance Contract?

In majority of distance contracts the consumer may withdraw within the time limit set in the regulations without stating his reason to do so.

According to the European standards, the consumer has right to withdraw from the contract within seven working days. Different member states introduce rules to create a higher level of consumer protection and designate longer time for the cancellation of a distance contract without any consequences. Designated time for withdrawing from the distance contract in Poland is ten days.

The time is counted from the delivery date or from the date of concluding the contract for the provision of service. The time counts only if the entrepreneur provided all the necessary written information. Otherwise the time designated to cancel the contact is withheld, however not longer than for three months.

We bought a jacket from a catalogue from a France-based company. Neither in the catalogue nor in the contract of sales the entrepreneur informed us about the right to withdraw from the contract. After the delivery, it turned out that the jacket did not fit us so we decided to give it back. Unfortunately, for a dozen or so days we did not have time to go to a post office to send the jacket back. In such a case, although we failed to perform our side of the contract, the period to exercise the right to withdrawal did not become valid. After a month since the delivery of the goods, the seller informed us about our right to withdraw so we have ten days to send the jacket back to France.

To effectively cancel the distance contract it is enough to send a statement to the entrepreneur within the designated time. The "letter" posting date is valid and not the date of receiving it by the addressee. It is essential to keep the copy of our statement sent to the entrepreneur as a proof of sending the document, e.g. a proof of postage receipt.

If the parties to the contract do not agree otherwise, then we will not have the right to withdraw in the following cases:

• for the provision of services, the performance of which started upon the consumer's consent prior to the time designated for the withdrawal,
• for the delivery of goods or performance of services, the price of which depends on the financial market fluctuation being beyond the supplier's control,
• for the delivery of goods manufactured at the consumer's request, clearly tailored to consumer's individual needs,
• for the delivery of such goods, which considering their nature, cannot be sent back because they easily deteriorate or have early expiry date,
• for the delivery of audio-visual recordings or a computer software if the packaging was damaged by the consumer,
• for the delivery of newspapers, periodicals and magazines,
• for the provision of services relating to games of chance and mutual betting.

Can We Withdraw from the Credit Contract?

When we bought goods on credit (from a supplier or from a third party related by contract to a supplier), then the credit or loan contract is automatically terminated in case of withdrawing from the selling contract. We should not pay any additional costs for the withdrawing from the contract.

Do We Pay a Penalty for Revoking the Distance Contract?

A consumer cannot incur any charges for exercising his/her right to the withdrawal in the time set in the regulations except the direct cost of returning the goods The paid money must be promptly reimbursed, however not later than within 30 days. Depending on the legislation of a specific European Union Member State the time limit may be shorter to the consumer's advantage - in Poland 14 days including interest for default.

Time of Delivery

If the parties have not agreed otherwise, the supplier must deliver the goods within thirty days at the latest, following the day of consumer's order placed with the supplier.

If the ordered goods or services are not available, the supplier must promptly inform the consumer and reimburse all the amounts paid within 30 days at the latest.

If the entrepreneur cannot perform the contract, he may be released from his obligations by providing the goods or services of a similar quality and price if such option has been provided for prior to concluding the contract or in the contract. The consumer must be informed in a clear and explicit way. If the replacement provision does not suit us, we have the right to cancel the contract, returning the goods at the entrepreneur's expense.

Payment by Credit Card

A consumer may request the cancellation of payment in case of unauthorised use of his payment card under the distance selling contract. Removing the irregularity should take place at the entrepreneur's expense.

Do We Have to Pay for Unsolicited Goods?

In the light of cross-border trade this is a major problem because we receive a product with the letter in a foreign language, after a couple of days we may receive a bill. We either do not understand what it is all about or we partially understand and undertake activity, which involve us in unnecessary trouble.

Sending unsolicited products do not originate any obligations on the side of the consumer. It is entrepreneur's own responsibility to deliver the goods to us.

Usually, companies send us minor gifts such as a book or a fine ballpoint or a device "for testing". The entrepreneur should be aware of the fact that we may not need such a thing, we may not like it or we may not afford buying it. Moreover, a consumer cannot be held responsible for any entrepreneur's activity.

We can, therefore, ignore a delivery of unsolicited goods even if the cover letter includes a provision that "in case of no response the delivery shall be deemed accepted".

What Should We Remember?

• Remember that buying by means of post or the Internet you conclude a distance contract.
• A suggestion of concluding this type of contract, in a form of an offer, for instance, should be explicit and explicitly inform of the intention to conclude a contract by a person offering to conclude such contract.
• Remember that you have right to privacy protection - therefore the use of fax or e-mail in order to submit an offer to conclude a contract may take place exclusively upon your consent.
• Remember that you do not have to accept unsolicited goods or services - the goods carrying a sign - "in case of no response the delivery shall be deemed accepted" is delivered at the entrepreneur's responsibility.
• Remember that you can withdraw from the contract within 10 days after the delivery of goods and in case of services - on the date of conclusion.
• Remember that you can withdraw from the contract without stating the reason of your decision.
• Remember that the entrepreneur cannot make a reservation that the consumer may withdraw from the contract after paying the payment of the so-called compensation - you do not have to incur any additional charges.