We have addressed legal issues connected with the right to withdraw from a consumer contract concluded using distance means of communication in legal circulars on several occasions. Nevertheless, given the topicality of this issue for the everyday practice of traders in the internet environment, it is certainly appropriate to devote further space to this topic. This time we shall focus on the issue of refunding money to a consumer after withdrawal from a contract of sale, mentioning decisions of foreign courts which have dealt with these questions and which could also be a certain inspiration for Czech decision-making practice.

The provision of Article 6(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts reads as follows: “If the consumer exercises his right of withdrawal pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer free of charge. The only charge that may be made to the consumer because of the exercise of his right of withdrawal is the direct cost of returning the goods. Such reimbursement must be carried out as soon as possible and in any case within 30 days.” This paragraph was implemented into Czech law by the provision of Section 53(10) of the Civil Code (Act No. 40/1964 Coll.), which provides that “If the consumer exercises the right to withdraw from the contract …, the supplier is only entitled to reimbursement of actually incurred costs connected with the return of the goods. The supplier is at the same time obliged to refund to the consumer the financial amounts paid no later than 30 days from the withdrawal.”

Naturally, questions arise in practice regarding the interpretation of these provisions, particularly in the sense of whether the consumer also has a claim for refund of the amount paid for the transport of goods and further whether it is possible to set off certain financial claims of the trader against the consumer against the consumer’s claim for refund of the purchase price. Given that the provision of Section 53(10) of the Civil Code was incorporated into the Czech legal order only with effect from 8 March 2006, court decisions of our higher courts are not yet available. For these reasons it may be interesting and inspiring to become acquainted with certain court decisions from other countries of the European Communities which have dealt with these questions.

In a decision of the court in Karlsruhe it is stated that a consumer is, in the case of withdrawal from a contract of sale (concluded using distance means of communication), entitled to demand from the trader also the refund of money which he paid for the transport of goods to his place of residence. In another matter a Danish court reached the decision that a trader is not, in the case of withdrawal from a contract of sale by a consumer, entitled to demand from the consumer the difference between the value of the goods at the time of their sale and the value of the goods at the moment of their return to the trader. It may be noted that in this case the goods were not even delivered to the customer, yet apparently there was a movement in prices during the relevant time period.

The Supreme Court in Austria then decided in a case where a purchaser withdrew from a consumer contract of sale concerning a, at that time, very expensive LCD television (monitor), whereupon it was subsequently established that the television had been intensively used by the consumer before its return to the trader. The trader, following this discovery, refused to refund the entire purchase price to the consumer with regard to the depreciation of the television by such use. The court in this case found in favour of the trader, stating that the consumer had used the television for a far longer period than was necessary to test its proper functionality. For this reason such wear and tear of the television occurred that it was no longer possible for the trader to offer it as new. The trader was thus entitled to set off his claim for damages against the consumer’s claim for refund of the purchase price.

In conclusion we point out that the above concerns conclusions of foreign court practice and in no case can possible decisions of Czech courts in similar matters be anticipated from these conclusions. For completeness we further state that this issue is also addressed by the draft of the planned directive of the European Parliament and of the Council on consumer rights.

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