From 1/1/2014, revolutionary changes are to occur directly in Czech private law. A new Civil Code (Act No. 89/2012 Coll.) shall enter into force, whereby, amongst other things, the current Civil Code is being abolished and the existing Commercial Code is being abolished. Moreover, by October 2013 at the latest, the Czech Republic is to incorporate into its legal order the provisions of Directive 2011/83/EU on consumer rights. Whether this implementation will occur on time is not clear at this moment. Nevertheless, the provisions of this Directive have already been incorporated into the text of the new Civil Code. Within the framework of this contribution, we shall address certain planned changes relating to the very popular institute of withdrawal from a purchase contract without stating a reason (when purchasing in an e-shop or through other distance selling).

The basic prerequisites for a consumer’s entitlement to withdraw from a purchase contract without stating a reason remain unchanged; it must be a contract concluded at a distance (for example, through the internet or telephone) between a trader and a consumer. The basic regulation is contained in the first sentence of the provision of Section 1829(1) of the new Civil Code, where it is briefly stipulated that “the consumer has the right to withdraw from the contract within a period of fourteen days.” This provision is then supplemented by the second sentence of Section 1818, which expressly establishes that “if the consumer has the right to withdraw from the contract …, it is not required that he state a reason, and no sanction may be connected with the right to withdraw from the contract.” This means that it is indeed an entitlement of the consumer, for the exercise of which such consumer cannot be contractually penalised in any way by the trader (by a contractual penalty or other sanction). This regulation therefore remains identical.

Interesting changes, however, concern the time limits for withdrawal from a purchase contract without stating a reason. Generally, the 14-day time limit remains preserved; nevertheless, there is a change from a so-called substantive law time limit to a so-called procedural time limit. What does this mean? Newly, it shall suffice if the withdrawal is sent by the consumer to the trader within the fourteen-day time limit (not delivered, as is currently the case). This is expressly established by the second sentence of Section 1818 of the new Civil Code: “If the consumer exercises the right to withdraw from the contract …, the time limit for withdrawal shall be deemed to be preserved if the consumer, during its course, sends to the trader a notice that he is withdrawing from the contract.” This time limit generally runs from the day of taking over of the goods by the purchaser.

Another important change is the extension of the time limit for withdrawal from the purchase contract in the case where the trader fails to fulfil his obligation to properly instruct the consumer regarding his possibility to withdraw from the contract. This instructional obligation of the trader is established in the provision of Section 1820(1)(f) of the new Civil Code. According to the previous legal regulation, the time limit in these cases was 3 months, whereas the new Civil Code extends it up to one year and fourteen days. Specifically, it is stipulated that “if the consumer was not instructed about the right to withdraw from the contract …, the consumer may withdraw from the contract within one year and fourteen days from the day of commencement of the running of the time limit for withdrawal …. However, if the consumer was instructed about the right to withdraw from the contract within this time limit, the fourteen-day time limit for withdrawal runs from the day the consumer received the instruction.” (Section 1829(2) of the new Civil Code). From this it follows that the consequence of failure to fulfil the instructional obligation is a substantial private law “sanction” for the trader consisting in the fact that the consumer may exercise the right to withdraw from the purchase contract for a very long time.

The provision of Section 1829(1) then again, in connection with the Union regulation, newly specifies the commencement of the running of the time limit for withdrawal from the contract in the case where, on the basis of one contract (one order), several pieces of goods are delivered or goods are delivered in parts. In the case of a contract the subject matter of which is several types of goods or delivery of several parts, the time limit for withdrawal from the contract runs from the day of taking over of the last delivery of goods. In the case of a contract the subject matter of which is regular repeated delivery of goods, the time limit for withdrawal from the contract runs from the day of taking over of the first delivery of goods. Likewise, naturally, the rule shall remain preserved that if withdrawal from the purchase contract occurs, the purchase contract is cancelled from the beginning and the contracting parties are obliged to return to each other the performance provided. That is, specifically, the consumer is obliged to return the goods to the trader and the trader is obliged to return the money to the consumer. Newly, however, certain issues relating to the return of performance from the purchase contract thus extinguished have been regulated, including regulation of time limits for return of this performance.

The first sentence of the provision of Section 1831 of the new Civil Code establishes that “if the consumer withdraws from the contract, he shall send or hand over to the trader without undue delay, at the latest within fourteen days from withdrawal from the contract, the goods which he received from him.” Here too it is a so-called procedural time limit, which means that for its preservation it suffices if the consumer sends the goods to the trader on the last day of this time limit. The mutual obligation of the trader to return the money is then stipulated by the first sentence of the provision of Section 1832(1) of the new Civil Code. Specifically, it is stated there that “if the consumer withdraws from the contract, the trader shall return to him without undue delay, at the latest within fourteen days from withdrawal from the contract, all monetary funds…” Newly, there thus occurs a shortening of the time limit for return of money to the consumer, from the original 30 days counted from the moment of withdrawal from the contract by the consumer, to 14 days.

The provision of Section 1832(4) of the new Civil Code explicitly states that “if the consumer withdraws from the purchase contract, the trader is not obliged to return the received monetary funds to the consumer earlier than the consumer hands over the goods to him or proves that he sent the goods to the trader.” In connection with the wording of this provision, disputes may probably arise in practice regarding its interpretation, specifically regarding what is meant by proving that the consumer sent the goods to the trader. This is an implementation of the provision of Article 13(3) of Directive 2011/83/EU on consumer rights, which, however, unfortunately likewise does not provide closer guidance for interpretation. The Czech version of this article of the Directive reads: “unless the trader has offered to collect the goods himself, in the case of sales contracts he may withhold reimbursement until he has received the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is the earliest.”

In connection with the case law of the Court of Justice of the EU and in connection with the wording of the Directive on consumer rights, a provision has also been expressly included in the new Civil Code that the consumer has, in the case of withdrawal from the purchase contract, not only the right to return of the purchase price, but also the right to return of costs relating to delivery of the goods which he paid to the seller. Specifically, this is stated in the provision of Section 1832(1), as follows: “if the consumer withdraws from the contract, the trader shall return to him … all monetary funds including costs of delivery which he received from him on the basis of the contract…” We emphasise that by this are meant costs of delivery of goods to the consumer, not costs relating to transport of goods when returning them back to the seller.

The obligation of the trader to return to the consumer the costs of delivery of goods is moderated to a certain extent by the inclusion of the provision of Section 1832(2) of the new Civil Code. This stipulates that “if the consumer chose a method of delivery of goods other than the least expensive method which the trader offers, the trader shall return to the consumer the costs of delivery of goods in an amount corresponding to the least expensive offered method of delivery of goods.” This means that in the case where the trader offers various methods of delivery of goods, he is possibly obliged to return to the consumer only an amount in the height of the least expensive method of transport offered by this trader. The fact that the trader possibly also offers personal collection of goods is not directly related to this issue.

The changes which the so-called recodification of Czech private law will bring for traders in the internet environment (and not only for them) will be numerous. However, it is not yet entirely clear what the situation will be in the “transitional period” between October 2013, by which the Directive 2011/83/EU on consumer rights was to be incorporated at the latest, and 1/1/2014, when the new Civil Code is to enter into force.

article originally published on the LUPA server

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