Jurisprudenţă

  • Detalii privind cazul
    • ID național: Bucharest County Court, Civil section IV, Judgement 135/2020
    • Statul membru: România
    • Denumire comună:N/A
    • Tipul de decizie: Decizie a Curții care face obiectul unui recurs
    • Data deciziei: 16/01/2020
    • Instanţa: Tribunalul București Secția a VI-a Civilă
    • Obiect:
    • Reclamantul:
    • Pârâtul:
    • Cuvinte-cheie: Consumers rights, B2B, right of withdrawal, distance contract
  • Articole din directivă
    Consumer Rights Directive, Chapter 1, Article 1 Consumer Rights Directive, Chapter 1, Article 2 Consumer Rights Directive, Chapter 1, Article 3 Consumer Rights Directive, Chapter 3, Article 9
  • Notă preliminară

    A professional cannot enjoy the benefit of the legal provisions concerning the right of withdrawal from distance contracts when these are legally established for the benefit of the consumers unless there is a clear contractual provision in this regard.

  • Fapte

    A lawyer bought a product through a distance contract and wanted to exercise its right of withdrawal. The trader refused the termination of the contract and the client brought court proceedings; the Court in first instance rejected the claim and an appeal was launched.

  • Chestiune juridică

    Can the legal provisions concerning the withdrawal right in distance contracts be applied to a contract between professionals?

  • Hotărârea

    The Emergency Ordinance 34/2014 regulates the rights of the consumers in relation with professionals and aims to ensure a high level of protection for consumers and the smooth functioning of the market; when the claimant is not a consumer, but a professional, he cannot enjoy the benefit of this normative act.

    Even if the document called “General terms and conditions” contains a provision stipulating a withdrawal right, which can be exercised in 14 days from the conclusion of the contract, the same provision stipulates that the right is regulated in accordance with the provisions of the GEO 34/2014. Accordingly, it was not necessary to further stipulate that it concerned only the consumers, this being implied from the reference to the GEO 34/2014 (that benefits only consumers).

    Also, the contract does not stipulate that the withdrawal right (existing in accordance with the provisions of the GEO 34/2014) also extends to the professionals; the fact that the trader/the defendant refused to allow a free test of the product before the conclusion of the contract cannot be interpreted in the sense that the trader accepted the applicability of the provision regarding the withdrawal right also in relation with another professional. Furthermore, the claimant did not present proof of the trader’s commercial practice obliging the seller to create a free demo account for the clients who acquire software products or to allow them to withdraw from contracts without compensation. As a consequence, the allegation of the claimant that the withdrawal right and the restitution procedure established by the GEO 34/2014 as regards consumers involved in distance or off-premises contracts should be extended also to professionals cannot be accepted, as it lacks a legal or a contractual justification.

    Text integral: Text integral

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  • Rezultat

    Since the requirements for the operation of the withdrawal right were not met, the Court rejected the appeal and upheld the decision of the Court in first instance. The judgement is final.