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”).