Vartotojo Teisė Atsisakyti Sutarties – Praktinis Jos Įgyvendinimas Nuotolinės Prekybos Sutartyse (Consumer's Right of Withdrawal - Practical Implementation in Distance Selling Contracts)

Abstract

Lithuanian Abstract: Straipsnyje nagrinėjamas vartotojo teisės atsisakyti sutarties institutas, jo reikšmė nuotolinės prekybos ir jos modernesnės formos – elektroninės prekybos plėtrai, ištakos ir tikslai, ypatumai ir svarbiausios sąlygos, taip pat šio instituto taikymo teisinės pasekmės ir išimtys. Analizuojama aktuali praktika ir kiti praktiniai šio instituto aspektai Lietuvoje ir kitose ES valstybėse.

English Abstract: The article provides an analysis the consumer's right of withdrawal regulation in the distance selling contracts in the European Union and Lithuania. The author surveys the role of the consumer rights regulation for the distance selling and its modern form - the electronic commerce, the background and purpose of the consumer's right of withdrawal, conditions and exceptions, as well as legal consequences thereof.

Provisions of the EU Directives 97/7/EC and 2011/83/EC, as well as the pertinent case law of the Court of Justice of the European Union are analyzed. On the national law side, the analysis includes Lithuanian law providing for the consumer‟s right of withdrawal. Unfortunately no case law of the higher courts on this matter is available in Lithuania.

Principal purpose of the consumer's right of withdrawal is to make the distance consumer equal to the consumer in the traditional „brick and mortar‟ commerce by enabling hands on experience with the goods and services purchased. This purpose shall be considered very carefully when deciding on the aspects of the right of withdrawal, which are left out in the EU and national consumer law. The author suggests that the purpose of the consumer's right of withdrawal is practically important in finding a balance between the consumers' and business' interests, e.g., when the consumer has started use of the purchased goods, also in those cases when the business interests would be disproportionately damaged by the withdrawal of the consumer from the contract, such as online car rental. The balance principle, however shall not relieve the business from the obligations to provide proper, clear and exhaustive information to the consumer, including information on consumers rights.

Conclusions of the analysis, also focus on certain exceptions of the consumer's right of withdrawal, specifically practical limits in case of extraterritorial situations (distance seller and consumer being in different jurisdictions), and exceptions on the distance contracts which at request of the consumer are fulfilled immediately. These situations may enable certain abuse of the consumer rights. Especially in the latter case, the will of the consumer to enter into such transaction shall be evaluated very carefully, in order to ensure that it is true to the actual intentions of the consumer and free of external unfair influences (such as aggressive marketing or other predatory tactics). These issues require further specific research and potentially special legal regulation.

Note: Downloadable document is in Lithuanian.

Keywords: consumer rights, distance contracts, electronic commerce, withdrawal from contract

JEL Classification: D18, K20