Case law

  • Case Details
    • National ID: 528/2001
    • Member State: Spain
    • Common Name:“Entidad técnica de distribución X. S.L.” v María Cruz S. R. y Raúl A.S.
    • Decision type: Other
    • Decision date: 26/10/2001
    • Court: Audiencia Provincial (Appellate court, Burgos)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1. Doorstep Selling Directive, Article 4
  • Headnote
    1. A “request for free personal information” is not the same as a request for a visit from an entrepreneur or the person acting on the latter’s behalf. The visit request must be specific, i.e. unambiguous, and leave no doubt as to the purpose of the request. The purpose of a bulletin requesting personal, free information is clear; it is issued to gather information, not to execute a contract.
    2. Failure to comply with the legal obligations established in Article 3 of Law 26/1991 results in the declaration of nullity of the contract, as envisaged in Article 4; nullity does not have to be declared if a counterclaim is presented because allegation of nullity is sufficient for the complaint to be challenged.
  • Facts
    Mr. Raúl A. S. signs a course contract with a company (“Distribución X”). Mr. Raúl does not pay for the course. The material delivered by the contracting company does not correspond to the material requested and is not accepted (or at least this is not accredited by signature) by the defendant. “Distribución X” presents a complaint against Mr. Raúl requesting for payment of the amount due. The court rules against the company, declaring the contract invalid.
  • Legal issue
    During the proceedings the parties debated the possibility of applying the exception envisaged in article 1, b) of Law 26/1991, which establishes, as an exception to the scope of application of same, “that the visit by the entrepreneur or the person acting on his/her behalf has been requested expressly by the consumer”.

    The Court considers that, since the only thing requested by the defendant was free personal information, these terms are not equivalent to the requirement established by the abovementioned article 1. b), the logical consequence being that the contract is deemed to be subject to Law 26/1991 on contracts negotiated away from commercial premises.

    The Court also rules that the burden of proof in respect of the foregoing lay with the plaintiff, and justifies this decision “not only due to the constitutive and positive nature of the fact itself, but also due to legal requirements established in article 2.2, of the presumption of submission to that Law of all contracts and offers negotiated away from the commercial premises, with the burden of proof corresponding to the entrepreneur”.

    The judgment then declared the nullity of the contract due to infringement of the formal requirements established in article 3 of the abovementioned Law, in relation to article 4 of same.
  • Decision

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