Once again, we shall address the forthcoming amendment to the Civil Code, specifically the issue of incorporating the trader’s pre-contractual information obligation in cases where the consumer does not have the right to withdraw from a distance contract.

The cases in which the consumer cannot withdraw from the contract are regulated by the provision of Section 1837 of the Civil Code. The most common such cases in practice are the supply of goods which have been modified according to the buyer’s wishes or for his person, the supply of goods which are subject to rapid deterioration, the supply of goods in sealed packaging which the consumer has removed from the packaging and which cannot be returned for hygienic reasons, or the supply of audio or video recordings or computer programmes if the consumer has broken their original seal.

The obligation to inform the consumer that in these cases he cannot withdraw from the contract of sale has not yet been expressly incorporated into Czech law, even though it has been regulated in the Consumer Rights Directive since 2011, specifically in the provision of Article 6(1)(k). The European Court of Justice has also indirectly commented on this obligation several times, and we reported on these judgments in last year’s October circular. The provision of Article 6(1)(k) of the Directive specifically provides that before the consumer is bound by a distance contract, the trader shall provide the consumer, in a clear and comprehensible manner, with information that if, in accordance with Article 16 of the Directive, the right of withdrawal is not provided, the consumer will not be able to exercise that right, or, as the case may be, information on the circumstances under which the consumer loses his right of withdrawal.

The wording of the provision of Section 1820(1)(k) of the Civil Code in the Government Bill is currently as follows: “if the conduct of the parties is directed towards the conclusion of a contract and the trader uses exclusively at least one means of communication which allows the contract to be concluded without the simultaneous physical presence of the parties…, or if such conduct is directed towards the conclusion of a contract outside the premises customary for the trader’s business, the trader shall inform the consumer in sufficient time before the conclusion of the contract or before the consumer makes a binding offer, if the consumer does not have the right to withdraw from the contract, of this fact or of the conditions under which his right of withdrawal from the contract shall expire.”

The proper incorporation of this obligation into Czech law may thus have an impact on the user interface of online shops or on the specification of goods provided by the trader on websites. The trader will have to give advance notice in respect of certain types of goods (or services) that the consumer does not have the right to withdraw from the contract of sale in respect of such goods. Or under what conditions such a right expires, for example, that by opening certain goods the consumer’s right to withdraw from the contract expires, etc.

Jiří Moravec, JD

Mašek, Kočí, Aujezdský Law Firm

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. 01/2021 intended for members of this association.

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