Europees e-justitieportaal - Case Law
Sluiten

BÈTAVERSIE VAN HET PORTAAL NU BESCHIKBAAR!

Bezoek de bètaversie van het Europees e-justitieportaal en vertel ons wat u ervan vindt!

 
 

Kruimelpad


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID 1999/AR/202
Lidstaat België
Common Name s.a. Euroconstruction/Mr. and Mrs. Danielswiez-Claes
Decision type Overige
Decision date 25/02/2005
Gerecht Hof van Beroep (NL)/Cour d'appel (FR)
Onderwerp
Eiser
Verweerder
Trefwoorden

Doorstep Selling Directive, Article 1, 2. Doorstep Selling Directive, Article 4

1. The consumer who shows his interest for a product or a service on offer in an advertising brochure, can not be equated with a consumer who requests a seller to visit him at home with a view to negotiate about the purchase of that product or that service (art. 87,a Act of 14 July 1991 on trade practices and consumer information and protection (“TPA”)). The document wherein the consumer, at his premises, committed himself irrevocably to purchase a product or a service in the presence of a representative of the seller, has to meet the requirements of article 88 of the TPA.
2. The conduct of the seller – after the consumer allowed him to visit – to persuade the consumer to purchase, without observing the provisions of article 88 of the TPA and without giving the consumer the information which he is entitled to, is unlawful and gives cause to damages.
1. Mr. and Mrs. Danielswiez-Claes, the defendants, are the proprietors of a residence in Grez-Doiceau.
On 22 October 1996 and on 19 September 1997 they had requested for a mortgage loan with Argenta for renovation of their house. The defendants confirm that they did not receive the requested mortgage loan.
2. In the course of 1997 Euroconstruction, the appellant, distributed a brochure in which they promoted a system for renovation.
The defendants contacted Euroconstruction by telephone as a result of which Euroconstruction sent a representative to the residence of the defendants.
During the visit of the representative on 7 July 1997 the defendants signed a document in which they declared to accept irrevocably that Euroconstruction would perform alterations to their residence. This document did not contain any indication about the identity of the appellant or the representative. It was not signed by the latter and nothing indicated that it was drafted in two copies. Furthermore, the date of the commencement of the renovation was not mentioned.
By letter of 12 august 1997 the appellant confirmed that he had received the order form and he specified that the alterations would commence in the beginning of September and that the price was payable after the alterations had been completed. The defendants did not respond to this letter.
By letter of 7 November 1997 the appellant asked the defendants to indicate on which date the alterations could commence. He specified that the materials for the work were already in stock. By registered letter of 23 November 1997 the defendants responded that they had vainly tried to obtain a mortgage credit and that the renovation could not take place. They made notice of a telephone call in the course of which they had already informed the appellant of their will to renounce the contract.
On 6 January the appellant urged the defendants to respect their obligations; a writ followed on 5 February 1998.
The defendants disputed this claim and per contra claimed damages.
The first judge rejected the (current) appellant’s claim and adjudicated the counterclaim.
Article 88 of the TPA protects consumers in case of doorstep selling. More specifically it provides for the nullity of the contract when the latter does not contain a right of withdrawal on behalf of the consumer.
The appellant argues wrongfully – by stating that the defendants have requested expressly for the visit of the representative prior to the visit with a view to negotiate about the purchase of the service at matter – that he may benefit from the exception of article 87 lit. a TPA.
On the contrary, everything indicates that the defendants have solely accepted the visit of the representative in view of obtaining more information about the alterations described in the brochure and, as the case may be, in view of obtaining a free offer. The consumer who shows his interest for a product or a service on offer in an advertising brochure, cannot be equated with a consumer who requests a seller to visit him with a view to negotiate about the purchase of that product or that service.
The provisions on doorstep selling of the TPA are thus applicable so that the document of 7 July 1997 has to meet the requirements of article 88 of the TPA. The document is however not in accordance with the requirements of the latter provision: there are e.g. no mentions about the right of withdrawal, which is sanctioned by nullity. The contract is therefore null. All the more so because the appellant, as a professional, should have known and should have respected the provisions of article 88 of the TPA.
Hence, there is no doubt the appellant through his conduct tried purposively to mislead the defendants about their rights. Therefore the defendants are entitled to damages.
Full Text: Full Text

No results available

No results available