Article 5 2.
Article 6 1. (g)
|National ID||Decision no. RGD-32/2011|
|Common name||Decision type||Administrative decision, first degree|
|Court||Prezes Urzędu Ochrony Konkurencji i Konsumentów w Warszawie, Delegatura w Gdański||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 in Gdańsk||Defendant(s)||P.H. „Rolendt” Karol Arendt with its registered office in Gdańsk|
|Subject||right of withdrawal|
|Keywords||terms & conditions, consumer rights, misleading statements, replacement, right of cancellation|
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It is an unfair commercial practice to insert in a standard agreement a clause stating that, due to the fact that the seller usually has only one product of a given kind, it is impossible to have it replaced or returned.
The defendant conducted its business activity under the name of P.H. „Rolendt” Karol Arendt. He offered retail as well as wholesale via internet on his website and well-known auction portal (www.allegro.pl). In the standard agreement used by the defendant, the terms and conditions of which were published on the defendant's website, the following clause was included: "We do not accept the returns of the purchased product, nor do we replace the purchased products due to the fact that we usually have one model of a given product available for sale."
Is it an unfair commercial practice to insert in a standard agreement a clause stating that because the seller has usually only one product of a given kind it is impossible to have it replaced or returned?
The court first noted that, as a professional salesman, it is the defendant's obligation to provide the consumer with complete and reliable information about the consumer's rights. According to Polish law, a consumer is granted a 10 days period to withdraw from a contract concluded by means of distance selling (for sale of goods, this term starts at the day of receiving the goods); subsequently, calculated as from the moment having withdrawn from the contract, the consumer has an additional 14 days period to return the commodities without any additional conditions being imposed on the consumer. Hence, the consumer's right to withdraw from a contract is not dependent on any behaviour on the trader's side.
In this case, the court further reasoned, the defendant tries to restrict the withdrawal right of the consumers by stating that the withdrawal from the agreement is not possible due to a limited amount of the offered commodities. In such way, the defendant may have influenced the consumers' decision about entering into the contract and the defendant distorted or may likely have distorted their economic behaviour. As a result, the commercial practice in question was found to be unfair.
The practice used by the defendant was found to be unfair. The defendant was ordered to make a commitment to discontinue the challenged practices and to insert in the standard agreement a relevant clause providing information about the consumers' right to withdraw from the contract.
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