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Case Details

Case Details
National ID AP de Murcia (Sección 5ª) Sentencia no. 298/2009 de 15 septiembre
Estado miembro España
Common Name link
Decision type Court decision in appeal
Decision date 15/09/2009
Órgano jurisdiccional Audiencia Provincial de Murcia
Asunto
Demandante Unknown
Demandado Telefónica Móviles España S.A.U.
Palabras clave distance contracting, off-premises contract, right of withdrawal

Consumer Rights Directive, Chapter 3, Article 9

1.The law only grants the right of withdrawal in distance, off-premises and travel package contracts. In contracts concluded in the seller’s premises, the law may not grant the right of withdrawal or impose a period for exercising it shorter than the legal one.
2.Where right of withdrawal is granted by a contract and not by a legal provision, there is no obligation of prior information to the consumer for the trader.
The plaintiff entered into a phone service contract with the defendant. The contract was concluded at an establishment of the trader. The plaintiff wanted to exercise his right of withdrawal and alleged that he was within the term to do so because said term was 3 months, due to failure of the defendant to comply with his obligation to provide prior information to the consumer on his right of withdrawal. It should be noted that the then applicable 3 months term is now 12 months according to current legislation.
1. Can the right of withdrawal be exercised by consumers who have concluded a contract in the premises of the trader, and if so, what are the conditions?
2. Is there an obligation for the trader to communicate the right of withdrawal to the consumer prior to entering into the contract?
1.The court stated that the legal right of withdrawal is only provided by the Spanish Consumer Protection Act for distance, off-premises and package travel contracts. However, it can be (and normally is) granted by the trader in other contracts. Where the trader does not grant this right to the consumer in an agreement, said consumer shall not have the right to withdraw from the contract, unless it is provided for by a law. As a consequence, since the contractual right of withdrawal depends upon the will of the parties, the contract can establish a period for exercising that right which is shorter than the legal term for the legal right of withdrawal.
2. The court clarified that the duty to inform the consumer on the right of withdrawal only applies to those cases where such right is granted by a legal provision, i.e. in a consumer contract concluded in the premises of the trader; since there is no legal right of withdrawal, there is no obligation of prior information either.
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The claim did not succeed; the plaintiff had not exercised his right of withdrawal within the due term for doing so.