Doorstep Selling Directive, Article 1, 1. Doorstep Selling Directive, Article 3, 2.

1. The Act of 14 July 1991 on trade practices and consumer information and protection (“TPA”) is applicable on services which concern real estate. A contracting agreement (“aannemingsovereenkomst”) which concerns the building of real estate comes under the range of application of the TPA.
2. Article 86 and the following of the TPA are not applicable when the consumer explicitly requests for the visit of a seller prior to the visit with a view to negotiate about the purchase of a product or a service (art. 87,a TPA). The burden of proof of the fact that the exclusive and unequivocal initiative comes from the consumer, rests with the seller. This burden of proof also encompasses the proof of the consumer’s intention to negotiate about the purchase of the product or the service. That intention cannot only be deduced from the literal wordings of the consumer’s request but also from the accompanying circumstances.

On 13 January 2000 a representative of Mini-Flat n.v., the appellant, came to the house of C. Vandelannoote, the defendant. Both parties signed an order form regarding a winter garden to the amount of EUR 1.219.000, installation and VAT of 6% included. The order form was made up in as many copies as there were parties. Each party declared to have received a copy.
The order form contained the mention: “The client has requested by telephone/in writing for an appointment with a representative of Mini-Flat ...”. Specifically, the defendant had filled out a form and indicated therein that he requested for a visit of an advisor of the appellant.
On 13 January 2000 the defendant paid an advance of EUR 3718,40. On 27 January 2000 both parties signed detailed plans. On the same date the defendant signed a certificate concerning the applicable VAT tariff. On 16 February the appellant handed over the final plans for the works.
By registered letter of 22 March 2000 the defendant informed the appellant that he terminated the contract. The appellant replied by registered letter of 30 March in which he indicated to solely agree with the defendant’s request for dissolution of the contract if he would receive damages to the amount of 25% of the selling price.
By writ of 16 August 2001 the current defendant summoned the current appellant to appear before the court of first instance of Ieper. The current defendant claimed the annulment of the contract, basically on the basis of article 88 of the TPA, and the reimbursement of the advance of EUR 3718,40. The appellant filed a counterclaim for damages resulting from the unilateral termination of the contract on the basis of articles 1149 and 1794 of the Civil Code.
The first judge adjudicated the current defendant’s claim and rejected the counterclaim. Moreover, the court declared that the TPA was applicable on the contracting agreement and that the exception of article 87 lit. a of the TPA was not applicable in the present case, so that the contract was null.
The appellant appealed to this verdict.

1. The applicability of the TPA
There is discussion in doctrine and case-law with regard to the applicability of the TPA on services which concern real estate.
It is a fact that real estate as a product does not come under the TPA, but according to a growing majority of legal scholars a service which concerns real estate does come under the TPA. This majority states that the building of real estate without any doubt can be characterised as a service within the meaning of the commercial code and that a contracting agreement meets all the requirements of the definition of a service.
Therefore, in the present case the contracting agreement comes under the TPA.
2. The applicability of articles 86 and the following of the TPA
Article 88 of the TPA provides for a special protection for the consumer in the case of doorstep selling. If the contract does not mention, amongst other things, the right of withdrawal, the contract is null. This protection is however not applicable when the consumer explicitly requests for the visit of a seller prior to the visit with a view to negotiate about the purchase of a product or a service (art. 87 lit. a TPA).
The burden of proof of such prior request with a view to purchase and the fact that the exclusive and unequivocal initiative thereof comes from the consumer, rests with the seller. Since the defendant had filled out a form in which he indicated that he requested for a visit of an advisor of the appellant, it is clear that such initiative came from the consumer in the present case.
The burden of proof also embraces the proof of the consumer’s intention to negotiate about the purchase of a product or a service (see section 11 TPA). Because this represents a very difficult proof for the seller, it would be unfair to solely take the literal wordings of the consumer’s request into consideration. Therefore, also the accompanying circumstances (circumstantial evidence) must be taken into account.
In the present case there are accompanying circumstances which indicate that the consumer had the intention requested by article 87 lit. a TPA, e.g. the fact that the defendant provoked the visit of appellant, the signing of the order form, the payment of an advance, the signing of detailed plans, etc. These circumstances did not elicit any remark from the defendant. Only on 22 March, two months later, he terminated the contract. At that time however the will to conclude the contract took already definite shape.
Hence, the court has to assume that the appellant proves adequately that he came to the home of the defendant on the latter’s request with a view to negotiate about the contract. As a result, the exception of article 87 lit. a TPA is applicable in the present case so that the absence of a right of withdrawal in the contract is not relevant.
3. The damages
The valid contract between the defendant and the appellant was unilaterally terminated by the defendant. Therefore the appellant is entitled to damages.
Article 1794 of the Civil Code indicates that the principal can unilaterally terminate the contracting agreement at fixed price, even so if the works already commenced, if he indemnifies the contractor for all of his expenses, his labour and his income losses (“gederfde winst”).

Integrale tekst: Integrale tekst

Geen resultaten

Geen resultaten