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Case Details

Case Details
National ID link
Member State Belgium
Common Name link
Decision type Other
Decision date 26/05/1998
Court Hof van Beroep (NL)/Cour d'appel (FR) (Appellate court, Antwerpen)
Subject
Plaintiff Unknown
Defendant Unknown
Keywords

Doorstep Selling Directive, Article 1, 1.

The consumer is deprived of a right of cancellation when he, sent in a completed response form, requesting the visit of the seller.
In June 1992, the appellants filled in a response form with the request aimed at the seller to visit the consumers’ real estate for the construction of a veranda as well as an offer based on the exact dimensions of the veranda, with no obligation to buy.
After the visit of a sales representative, an agreement was concluded between appellants N.V. M.F. Parties agreed that N.V. M.F. would draw up a preliminary design for a veranda on payment of 50.000 Belgian francs.
On 20/08/1992, the parties concluded a contract for the construction of a veranda built to the specifications made on 12/08/1992, at the price of 1.443.919 Belgian francs. A cheque of 243.919 Belgian francs was handed over.
On 26/08/1992, appellants cancelled the agreement by registered mail, referring to Article 86 of the Act of 14 July 1991.
N.V. M.F. claims that the Act of 14 July 1991 does not apply to the case at hand and submits a claim of 25 per cent of the selling price for compensation.
According to Article 86 of the Act of 14 July 1991, contracts concluded during a visit to the consumer's home fall within the scope of application of the provisions on doorstep selling.

According to article 88 of the Act of 14 July 1991, those contracts must refer to the right of cancellation without costs, within seven working days after the conclusion of the contract.

However, Article 87 states that the provisions on doorstep selling do not apply, and hence the consumer forfeits the legal protection, when the consumer, prior to the conclusion of the contract, explicitly requests the visit of the seller with the aim of negotiating the purchase of the good or service.

The court is of the opinion that the burden of proof of such an explicit prior request lies with the seller. Considering also that the Act of 14 July 1991 seeks to protect consumers caught unaware, the court concludes that the seller has to demonstrate that the consumer took the unambiguous initiative to request the seller’s visit.

In the present case, the agreement was concluded after several preliminary phases which constitute a whole. Therefore the conclusion of the contract on 20/08/1992 was the final result of the filling in and sending of the response form. The acceptance and payment for the preliminary design was a confirmation of the will of the appellants to negotiate about the purchase as a result of their explicit request for the seller’s visit.

The court concludes that in those circumstances, the appellants cannot claim to be caught by surprise. Since the provisions in the Act of 14 July 1991 are not designed to allow parties to evade from lawfully concluded contracts, the appellants cannot invoke the right of cancellation provided for by Article 89 of the Act of 14 July 1991.
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