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.
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