As we have previously announced, the Civil Code is awaiting a significant amendment, which will also affect online traders. The new regulation will enter into force gradually, in two parts. The first part of the changes should take effect this year, specifically on 1 July 2021, the second not until January of the following year. As we have also mentioned, the new regulation not only implements new EU directives, but also remedies deficiencies in the implementation of previous directives. This legal circular is focused on a new obligation for traders under Czech law, which consists of the prescribed labelling of the order “button”, that is, the interactive element of the user interface which serves for the final ordering of goods or services.

The obligation in question should have been part of the Civil Code from the outset of its effectiveness. Its absence is a consequence of the incomplete transposition of the Consumer Rights Directive of 2011. This Directive in its Article 8(2) provides that in the case of distance contracts, that is, in particular in the case of purchases (conclusion of contracts) through e-shops, the order “button” must be properly labelled, namely in such a way that the user clearly understands that he is committing himself to payment for the ordered goods or service.

Also in view of the fact that the wording of this obligation in the Consumer Rights Directive is conceived differently from the newly proposed wording of Section 1826a(2) of the Civil Code, it is appropriate to examine the text of the Directive more closely. Article 8(2) of the Directive specifically provides that “The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. Where placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader has not complied with this subparagraph, the consumer shall not be bound by the contract or order.”

The wording of Section 1826a(2) of the Civil Code in the Government proposal is currently as follows: “The trader shall ensure that the consumer explicitly acknowledges when ordering that he is committing himself to payment. Where the order is made using a button or similar control element, they must be labelled with the easily legible inscription ‘Order with obligation to pay’ or another corresponding unambiguous formulation. If the trader fails to fulfil this obligation, the contract is invalid unless the consumer invokes it.”

In particular, attention may be drawn to the discrepancy between the texts in the area of the consequence of the trader’s failure to fulfil this obligation. According to the Directive, in the event of non-labelling of the button, the consumer is not bound by the contract, whilst the trader is apparently still bound. According to the concept in the Government proposal, however, the contract would be invalid from the outset unless the consumer invokes its validity. This could, of course, cause traders a number of problems, particularly with goods which are subject to rapid obsolescence. The consumer could claim the invalidity of the contract even after more than two years. It is a question whether the planned wording of Section 1826a(2) of the Civil Code will still be changed during the legislative process.

Also of interest for practice will be the approach of Czech traders to the form of the button itself, which may affect the usability of online shops. It is presumably unnecessary to emphasise that the inscription “order with obligation to pay” may not look entirely aesthetic on a button. However, traders may also attempt “another corresponding unambiguous formulation”. Creativity in this area, however, may carry with it a certain danger that not everyone must consider the formulation chosen by the trader to be unambiguous. The risk for the trader would then be a large number of contracts on the basis of which the consumer will not have to fulfil his obligations.

Jiří Moravec, JD

Josef Aujezdský, advokát

Law Firm Mašek, Kočí, Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 12/2020 intended for members of this association.

This text was translated from Czech to English using an AI translator.