With regard to distance and off-premises contracts, Decree-Law no. 24/2014, of February 14, stands out, as it aims to safeguard the legitimate interests of consumers.
As such, Article 2(1) states that “This Decree-Law shall apply to distance and off-premises contracts, with a view to promoting the transparency of commercial practices and safeguarding the legitimate interests of consumers.”
*
A) Exclusions
First of all, it should be noted that this regime does not apply to all contracts, with Article 2(3) of the aforementioned Decree-Law 24/2014, of February 14 - the law to which we will refer in the event of an omission - providing for various exclusions, including, by way of example, the following contracts:
Contracts relating to the construction, substantial conversion, purchase and sale or other rights relating to real estate, including leasing [cf. al. d)];
Contracts relating to healthcare services, whether or not they are provided within the framework of a healthcare structure and regardless of how they are organized and financed and whether they are public or private [cf. al. f)];
Gambling contracts, including lotteries, bingos and casino gambling and betting activities [cf. al. g)]; and
Contracts relating to goods sold by way of seizure or any other form of judicial execution [cf. al. n)].
With reference to the goods/services themselves, Article 17 of the Decree-Law provides for various exclusions, among which we would like to highlight the following situations by way of example:
Provision of services with an obligation to pay, when: i) The services have been fully provided after the prior express consent of the consumer, under the terms of article 15; and ii) The consumer acknowledges that he loses the right of withdrawal if the contract has been fully performed by the professional in that case [see paragraph 1(a)];
Supply of goods made to the consumer's specifications or manifestly personalized [cf. paragraph 1(c)];
Supply of sealed goods which cannot be returned for reasons of health protection or hygiene when opened after delivery [cf. paragraph 1(e)]; and
Supply of sealed audio or video recordings or sealed computer programs from which the consumer has removed the tamper-evident seal after delivery [cf. paragraph 1(h)].
*
B) Relevant definitions
In order to understand, albeit in part, the scope of application of the aforementioned legal regime, it is necessary to consider the definitions of some of the concepts mentioned in the aforementioned law.
As such, for the purposes of the respective Decree-Law,
1. A consumer is a natural person who acts for purposes that are not part of their commercial, industrial, craft or professional activity (see Article 3(e));
2. Contract concluded at a distance means a contract concluded between the consumer and the supplier of goods or the provider of services without the simultaneous physical presence of both, and integrated into a system of sale or provision of services organized for distance commerce through the exclusive use of one or more means of distance communication until the conclusion of the contract, including the conclusion itself (cf. art. 3(h));
3. Off-premises contract means a contract which is concluded in the simultaneous physical presence of the supplier of goods or services and the consumer at a place other than the consumer's business premises, including cases where it is the consumer who makes a contractual offer, including contracts:
(i) concluded at the business premises of the trader or by any means of distance communication immediately after the consumer has been personally and individually contacted at a place other than the business premises of the supplier of goods or services;
ii) Concluded at the consumer's home;
iii) Concluded at the consumer's place of work;
iv) Concluded at meetings where the offer of goods or services is promoted by demonstration to a group of people gathered at the home of one of them, at the request of the supplier or his representative or agent;
v) Concluded during a visit organized by the supplier of goods or services or his representative or agent, away from their business premises;
vi) concluded at the place indicated by the supplier of goods or services, to which the consumer travels, at his own risk, following a commercial communication made by the supplier of goods or services or by his representative or agent;
(cf. Art. 3(i))
4. Sales contract means any contract under which the supplier of goods or services transfers ownership of the goods to the consumer, including any contract having as its object both goods and services (cf. art. 3(j));
5. Service contract means any contract, other than a sales contract, under which the supplier of goods or services provides or undertakes to provide a service, including a digital service, to the consumer (cf. Art. 3(k)); and
6. Commercial establishment means any immovable retail premises where the supplier of goods or services carries on his business on a permanent basis, or any movable retail premises where the supplier of goods or services carries on his business on a regular basis (cf. art. 3(m)).
*
That said,
C) Time limit for exercising the right
According to Article 10 of Decree-Law no. 24/2014, of February 14, the consumer has the right to terminate the contract without incurring any costs (other than those set out in Article 12(3) and Article 13, where applicable), and without having to state the reason,
within 30 days in the case of contracts concluded at the consumer's home or during a visit organized by the supplier of goods or services or his representative or agent, away from their business premises;
or
within 14 days
in general terms:
in the case of a contract for the provision of services, from the day on which the contract is concluded;
and
in the case of sales contracts, from the day on which the consumer or third party indicated by the consumer acquires physical possession of the goods.
It should be noted that, under the terms of Article 10(4), there is nothing to prevent these time limits from being extended by agreement between the parties.
In the event of non-compliance with the duty to provide the aforementioned information regarding the existence of the right to freely terminate the contract (referring to the respective deadline and the procedure for exercising the right, under the terms of articles 10 and 11 with delivery of the free termination form set out in part B of the annex to the aforementioned Decree-Law), article 10(2) stipulates that the deadline for exercising the right to freely terminate the contract is 12 months from the date of expiry of the aforementioned initial deadlines.
If the supplier of goods or service provider subsequently complies (late) with the aforementioned duty, the 14 or 30 day time limits will run from the date of notification, as stipulated in Article 10(3).
*
D) Information/communication obligations
With regard to communication obligations, Article 4 stipulates that, before the consumer is bound by a distance or off-premises contract, or by a corresponding offer, the supplier of goods or services must provide him, in good time and in a clear and comprehensible manner, with various items of information, including “[w]hen applicable, the existence of the right to freely withdraw from the contract, the respective time limit and the procedure for exercising the right, under the terms of Articles 10 and 11, with delivery of the notice to the consumer”. º and 11.º with delivery of the free withdrawal form contained in part B of the annex to the [respective] decree-law”.
Paragraph 3 of Article 4 states that this information may be provided using the information model on the right of withdrawal set out in Part A of the annex to the respective decree-law, of which it forms an integral part, and that the supplier of goods or service provider is deemed to have complied with the duty to provide information on these elements if it has given the consumer these correctly completed instructions.
Accordingly, Article 5(5) also states that when the contract is concluded by means of distance communication with limited space or time to disclose the information, the supplier of goods or services must provide at least pre-contractual information on the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indefinite duration, the conditions for its termination, in or through that specific means, before the contract is concluded.
*
By way of context, these duties/obligations can also be covered by other legislation applicable in the cases in question, such as
a) in the Consumer Protection Law (Law no. 24/96, of July 31), Article 8(1) of which stipulates that “The supplier of goods or services must, both during the negotiation phase and when concluding a contract, inform the consumer in a clear, objective and appropriate manner, unless this information is clear and evident from the context” [going on to list an exemplary range of information] (and Article 8(5) further stipulates that “The supplier of goods or services must, both during the negotiation phase and when concluding a contract, inform the consumer in a clear, objective and appropriate manner, unless this information is clear and evident from the context” [going on to list an exemplary range of information]. Article 5 states that “The supplier of goods or service provider who breaches the duty to inform shall be liable for any damage caused to the consumer, and the other parties involved in the chain from production to distribution who have also breached the duty to inform shall be jointly and severally liable”.
b) in the Public Services Law (Law no. 23/96, of July 26), Article 4(1) of which states that “the service provider must clearly and conveniently inform the other party of the conditions under which the service is provided and provide them with all the clarifications that are justified, according to the circumstances”; or
c) in the Electronic Communications Law (Law no. 16/2022, of August 16), with article 120(1) providing that “Companies offering publicly available electronic communications services, with the exception of transmission services used for the provision of machine-to-machine services, must, prior to concluding a contract, make available to the consumer the information referred to in article 4 of Decree-Law no. 24/2014, of February 14, and in article 8 of Law no. 24/96, of July 31, depending on whether or not the contracts are concluded at a distance. Article 4 of Decree-Law no. 24/2014, of February 14, and Article 8 of Law no. 24/96, of July 31, depending on whether or not the contracts are concluded at a distance or away from business premises.”
*
Finally, we cannot fail to mention that, in principle, Decree-Law 446/85 of October 25 [General Contractual Clauses] will apply to the situations underlying the contracts to which we have referred.
Thus, in accordance with the provisions of paragraphs 1 and 2 of article 5 of Decree-Law no. 446/85, of October 25, the general contractual clauses must be communicated in full to the adherents who merely subscribe to them or accept them [paragraph 1], which must be communicated in full to the adherents who merely subscribe to them or accept them [paragraph 2]. This must be done in an appropriate manner and with the necessary advance notice so that, taking into account the importance of the contract and the extent and complexity of the clauses, it is possible for those who use ordinary diligence to become fully and effectively aware of them [no. 2] - [duty of communication].
In accordance with the provisions of Article 6(1) of Decree-Law 446/85 of October 25, the contracting party who uses general contractual clauses must inform the other party, in accordance with the circumstances, of the aspects included therein whose clarification is justified - [duty of information].
In the event of a breach of these duties, Article 8(a) and (b) of Decree-Law 446/85 of October 25 stipulates that such clauses may be considered excluded from individual contracts.
*
E) Subsequent procedures (rule of thumb in brief terms)
In the event that the right of withdrawal is exercised unequivocally (by letter, telephone contact, return of the goods or other means that can be proven) [cf. art. 11]
a) the supplier of goods or service provider must reimburse the consumer for the payments received, failing which the consumer is obliged to reimburse double the amounts paid within 15 working days, without prejudice to the right to compensation [cf. art. 12]; and
b) the consumer must return or hand over the goods to the supplier of goods or to a person authorized to do so within 14 days of the date on which he communicated his decision to terminate the contract [see art. 15].
It should be emphasized that this system is the rule, with the law allowing and providing for various exceptions that we need not mention here, referring to the respective applicable legal system.
Comments