Article 5 2.
Article 6 1.
Article 6 1. (a)
Article 6 1. (g)
|National ID||Decision no. RPZ-27/2011|
|Common name||Decision type||Administrative decision, first degree|
|Court||Prezes Urzędu Ochrony Konkurencji i Konsumentów w Warszawie, Delegatura w Poznaniu||Plaintiff(s)||The President of the Office of Competition and Consumer Protection in Warsaw|
|Court translation||The President of the Office of Competition and Consumer Protection in Warsaw, Delegature w Poznań||Defendant(s)||Harmedy sp. z o.o. with its registered office in Buk|
|Subject||misleading commercial practices|
|Keywords||terms & conditions, cancellation of contract, consumer rights, right of cancellation, right of withdrawal|
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(1) Subjecting the right of a consumer to return purchased products to stringent formal requirements, constitutes an unfair commercial practice.
(2) The mentioning in the contractual documentation of the trader of an incorrect legal basis for withdrawing from a contract, whereby the stipulated legal basis may work in the disadvantage of the consumer, constitutes an unfair commercial practice.
The defendant provides consumers with rehabilitation and medical equipment. In its business transactions with the consumers, the defendant used standard sales contracts. In these standard contracts, the defendant impeded consumers to exercise the right to return the purchased products by including the following clause in the contract: "Return of the purchased products can only be effected in the office of the trader upon receipt, during working hours and with prior telephone notification".
Moreover, in the event of off-premises purchases (which represented the main part of defendant's sales), the defendant provided the consumers with the declaration form of the withdrawal from the sales contract containing misleading information about the legal basis of this entitlement.
(1) Does subjecting the right of a consumer to return purchased products to stringent requirements, constitute an unfair commercial practice?
(2) Does the mentioning in the contractual documentation of the trader of an incorrect legal basis for withdrawing from a contract, whereby the stipulated legal basis may work in the disadvantage of the consumer, constitute an unfair commercial practice?
(1) The court ruled that the defendant infringes the rules on unfair commercial practices by stipulating in the standard consumer contracts a clause which allows consumers to return purchased products exclusively to the defendant's office, upon receipt by the defendant, during working hours and with prior telephone notification.
The court established that the provisions of applicable law do not specify how consumers should exercise a right to return purchased goods. In the opinion of the court, the requirements contractually imposed by the defendant may hinder or even prevent the consumer of exercising its rights. In the case at hand, the defendant conducted its business activity in the entire country by concluding contracts during exhibitions and fairs. Hence, this would oblige consumers willing to return purchased products, to bear the additional costs of a journey and take a day off from work, the court reasoned. In the opinion of the court, no rational reason exists why consumers cannot return purchased products via mail or by courier.
(2) In addition, the court held that providing consumers with a declaration form of withdrawal from the sales contract containing incorrect information about the legal basis of this entitlement equally constitutes an unfair commercial practice.
As the use of a false legal basis may impede consumers to exercise their legal rights, this must be considered a misleading commercial practice. The legal basis of the right to withdraw from a contract concluded outside the business premises of the trader is article 2, sec. 1 of the Act of the protection of certain consumer rights and liability for the damage caused by hazardous products, while the declaration form indicated as a legal basis article 7 sec.1 of the aforementioned act, which refers to withdrawal from the contracts concluded at a distance.
In each case, the period during which the consumer may withdraw from the contract is calculated differently. Therefore, the court held, stating such an incorrect legal basis may hinder or even prevent the consumers from exercising their rights. In the opinion of the court such practice distorts or is likely to distort the economic behavior of the average consumer after the conclusion of the sale contract.
The practices used by the defendant was found to be unfair. The court also imposed on the defendant a financial penalty, amounting to PLN 3.867,00 for the first practice and PLN 2.901,00 for the second one.
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