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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