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Case Details

Case Details
National ID 906/2004
Estado miembro España
Common Name “ADSL, Servicios Informáticos S. L.” v “Banco Español de Crédito S. A.”
Decision type Otros
Decision date 22/12/2004
Órgano jurisdiccional Audiencia Provincial
Asunto
Demandante
Demandado
Palabras clave

Distance Selling Directive, Article 6, 4. Distance Selling Directive, Article 8

1. The titleholder of a credit card that is used to acquire goods through the Internet does not assume responsibility for the risks of its fraudulent use and can cancel the charge.
2. The rules for electronic contracting and for the protection of the consumer, grant the latter not only the right to cancel the purchase within seven days but to stop the charge when the purchase had been charged on a credit card that had not been shown or that had not been electronically identified. The seller, not the titleholder of the card or the bank that is acting as an intermediary, therefore, takes on the risks of this transaction.
A company of computer services installed in its webpage the software of a bank in order to charge for the sales through Internet by the clients using credit cards in a secure mode through the bank. This installation was done through a contract signed on 24th May 2000. Later a consumer acquired goods through the Internet on 23rd November 2001, using the number on someone else’s electronic identification number. The company selling the product had to refund the titleholder of the card and went to court to claim the amount of 818,37 euros to the bank. The judgment denies the responsibility of the bank (a simple intermediary that cannot guarantee the client’s being the holder of the card) and makes the seller responsible for the risks of the operation.
The judgment concentrates on determining who takes on the risk of the electronic sale when the holder of the card refuses to assume the debt, either because of it being stolen or because it has been use in a fraudulent way. The Spanish case law has elaborated a solid doctrine, so that the consequences of the risk of using credit cards do not have to be assumed by its holder, as long as he has acted diligently. „This criteria to protect the consumer is increased when it is about distance contracts, paid by credit cards, which were protected by the Directive 97/7/EC of the European Parliament but also by the legislation that regulates the retail trade“. But in this case the relationship between the holder of the credit card and the company that issued it, it is not examined, but two other relationships: on the one hand, the one that exists through the electronic sale contract between the seller online and the client, and on the other hand, the contract that allows the seller to charge for the sales through the bank’s computer system which made that charge possible.

The Royal Decree 1906/1998 of 17th December on telephonic or electronic contracting with general conditions, is applied to the relationship between the seller and the consumer that purchases online. This Decree obliges the vendor to give background information and to confirm the contract in writing, acknowledging the right of the purchaser to cancel. Also the Law 7/1996 of 15th January on reatail trade (modified by the Law 47/202, transposing the Directive on distance selling, though not applicable here due to the dates) is applied. In it the right to give up on the part of the purchaser within seven days (art. 44) is recognized, as well as the right to stop the charge when the purchase had been paid by a credit card that had not been shown or electronically identified. For giving up as well as for stopping the charge going into the card, the consumer does not have to present any proof, since the right is granted as long as the facts indicated in the rules occur.

For this reason the judgment concludes that as the electronic contract can be given up and also it is possible to stop a charge of a misused credit card, the risk of the operation is assumed by the vendor, which is reinforced with art. 47.2 of the Law 7/1996, which acknowledges the vendor the right to be compensated for damages if whoever carried out the purchase was in fact the titleholder of the card and therefore there was no misuse of the card.

As for the relationship between the Bank and the vendor, the use of software of the bank does not alter nor excludes the rules of the electronic contract, nor makes the bank responsible of the risks of the transaction, since the bank authorises the automatic payment by just checking that the card is not out of date nor the limit of credit has been exceeded without assuming the finalised operation as such.
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