Contracts Concluded Away from Business Premises

• Legal basis
• When do we conclude a contract away from business premises?
• Parties to the contract made in a door-to-door selling
• Information duties
• Can I cancel a contract concluded away from business premises?
• Regulations regarding the door-to-door sales contracts are not applicable...
• The regulations regarding the door-to-door sales contracts according to the Polish Law do not apply to the contracts
• What is worth to remember?

It happens that a seller calls on us at our workplace or in a hotel during the holiday abroad and starts negotiations we are not prepared for. In such a situation we do not have an opportunity to compare the quality and prices of the goods with other offers. Door-to-door- selling practice is based on pushing you into making up your mind and signing a contract on the spot without any time to reflect. However, the law protects us from accidentally contracted obligations and provides the possibility to assess the situation during the "cooling-off period", even if you have signed the contract.

Legal Basis

The European standards protecting a consumer, who concludes a contract away from business premises are included in the Directive 85/577/EEC of 20th December 1985 on the protection of consumers in respect of contracts negotiated away from business premises (OJ L 372, 31/12/1985 P. 0031-0033). The text of the Directive is available on the website.

The Polish law regulates these issues in the Act of 2nd March 2000 on the protection of certain consumer rights and liability for damage caused by dangerous products 2000 (Journal of Laws No. 22, item. 271, as amended). The text of the act is available on the website.

When Do We Conclude a Contract away from Business Premises?

When an entrepreneur concludes contracts (under which he supplies the goods or provides services to the consumer):

• during a distance-marketing scheme outside the business premises (head office), organised by the entrepreneur,
• makes a call on us: I) at our home; II) at our work place;

Please, note that in each of these cases the call may not be made at the consumer's request.

The contract is concluded away from business premises when the entrepreneur presents his offer to us in a place that is not his/her regular place of carrying out the business. In most cases a seller intrudes upon our personal privacy, as the Polish legislator formulated.

For instance, during our holiday in Italy, we are going on an organised sightseeing tour. During one of the stops we are invited for refreshments and "presentation". An entrepreneur presents to us the "latest and best" models of photo cameras, which are available only once at an incredibly low prices and at the same time, an elegantly dressed woman is urging us convincingly to make a purchase, saying that it is a "real bargain!" We get carried away, think our camera is outdated and indeed, to record our stay in this wonderful city of Rome, we decide to buy the new equipment and take advantage of the "bargain". When the holiday is over and we are back in Poland it turns up that our camera is jamming and in the supermarket around the corner we can buy the same camera at a lower price. Then, we would like to get our money back... (Link to the text on revoking) and forget about the whole incident.

Parties to the Contract Made in a Door-to-Door Selling

Contracts concluded away from business premises are concluded between the consumer and the entrepreneur. According to the Directive, the consumer is a natural person who undertakes a transaction for purpose not relating to his/her business activity or profession, while the entrepreneur is a natural or legal person acting in the mentioned transactions within his business competence as well as every other person acting on behalf of the entrepreneur.

Information Responsibilities

Particular European Union Member States may have different detailed requirements because the Directive sets the protection objectives without indicating the methods of consumer protection.

Under the Polish law, you have the right to request from the entrepreneur to present his identity and a document confirming his business activity prior to concluding the contract. If a given person acts on behalf of the entrepreneur he/she must also present his/her authorisation.

Additionally, the entrepreneur must, prior to concluding the contract, inform us in writing about our right to cancel the contract and deliver the contract withdrawal form with the entrepreneur's name, surname (the company) and the domiciled address (head office). On the other hand, the consumer, at the request of the entrepreneur, confirms in writing that he has been informed about his/her right to withdrawal and that he has received the contract withdrawal form.

The seller is held responsible for supplying written confirmation of concluding the contract, stating the date and type (e.g.: sales contract concluded away from business premises), the object of the provision (e.g.: set of pots), and the price (value, currency, confirmation of making the payment).

>The entrepreneur must comply with the above responsibilities under the sanction that the withdrawal from the contract time limit is not running. See the details!

The laws regulating the above issue in other European Union Member States set similar requirements.

Can I Cancel a Contract Concluded away from Business Premises?

Conclusion of the contract away from business premises usually takes place on the initiative of the entrepreneur. We often have not got enough time to think whether we would like to conclude the suggested contract and if so, should it be done following the terms and conditions introduced by a professional. The lack of the possibility to contemplate a decision, compare with other entrepreneurs' offers, the element of surprise, these are serious shortcomings of concluding this type of deals. In order to equalize chances, the European legislator grants the consumer right to cooling off period and to cancel the contract.

In every European Union Member State the consumer has the right to withdraw from the contract by sending a cancellation notice within seven days at the least since the date of receiving the notice on the right to withdrawal. Such time assigned for the cancellation may differ in various states but it can only be changed to the consumer's advantage. In Poland, it is possible to cancel the contract within ten days following the making of the contract. If the entrepreneur did not send us a notice indicating consumer's right to withdrawal then the 10-day period does not apply and our right to the withdrawal is extended. However, such period cannot be longer than three months.

To comply with the deadline, it is enough to send the cancellation notice before the end of the period, the delivery date to the entrepreneur is irrelevant.

It should be underlined that if the consumer serves notice of cancellation, he/she is free from any liability under the contract. If the consumer exercises his/her right to the withdrawal, legal effects of such withdrawal are regulated by the Polish laws, especially as far as the problem of money repayment for the received goods and services is concerned. According to the Polish provisions of the law, the contract is not enforceable; the goods are to be restored unchanged unless the change is attributed to the ordinary management. The goods are to be returned forthwith, within fourteen days at the latest. If any prepayments have been made, statutory interest is due as of the date of making the prepayment.

The reservation in the contract stating that the consumer may withdraw from the contract only after the payment of a designated amount, i.e. the compensation, is inadmissible. In case if such provision is included in the contract, the contract is legally invalid and this implies that the entrepreneur will have no right to claim any money from the consumer.

Regulations regarding the Door-to-Door Sales Contracts Are Not Applied to...

1. contracts for the construction, for lease or sale of the real estate as well as contracts relating to other real estate-related rights.The Directive covers the contracts for the delivery of goods for incorporation of the real estate or for refurbishment;
2. any contract for the supply of food, drink or other goods intended for current consumption by use in the household and supplied by regular roundsmen;
3. any contract for the supply of goods or services, which satisfies all three following conditions:
• terms of the contract are contained in a trader's catalogue, which is readily available to the consumer to read in the absence of the trader or his representative;
• the parties to the contract intend that there shall be maintained continuity of contact between the trader or his representative and the consumer in relation to the transaction in question or any subsequent transaction;
• both, the catalogue and the contract, contain or are accompanied by a prominent notice indicating that the consumer has a right to return to the supplier goods supplied to him within the period of not less than 7 days from the day, on which the goods are received by the consumer or to cancel the contract within that period without the consumer incurring any liability, other than any liability which may arise from the failure of the consumer to take reasonable care of the goods while they are in his possession;
4. contracts of insurance;
5. contracts concerning securities.

The Regulations Regarding the Door-to-Door Sales Contracts according to the Polish Law Do Not Apply to the Following Contracts:

1. of a regular or temporary character concluded upon the sales offer or announcements, adverts, price lists and other information addressed to the public or to specific individuals, which was available to the consumer to read in the absence of the other party and the offer or information as well as the contract contained a notice indicating that the consumer had the right to withdraw from the contract within ten days since the day when the contract was signed,
2. for the supply of groceries supplied periodically to the consumer's placed of living by the roundsmen,
3. commonly concluded in minor issues relating to everyday living with the value of the subject of such contracts not exceeding EURO 10,
4. for the construction works,
5. relating to the real-estate with the exclusion of refurbishment works,
6. insurance, including the membership in open pension funds and reinsurance,
7. concerning securities and units of investment funds in trusts and investments (investment services).

What Is Worth to Remember?

1. When you conclude the contract at home, in the place of work or in a street you are entitled to specific rights.
2. Remember that prior to signing the contract, it is the entrepreneur's responsibility to present the document confirming his/her business activity and the identification document if the contract is not concluded by the entrepreneur himself but by his/her representative as well as the document confirming such fact.
3. Always check the seller's identification documents!
4. Remember, it is the entrepreneur's responsibility to inform you about your right to cancel the contract within the period of ten days, following the date of making the contract.
5. Remember that withdrawing from the contract you do not have to give any reason of your decision.
6. Remember that the entrepreneur is not entitled to request any payment when you decide to cancel the contract.