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Case Details

Case Details
National ID AP de Valencia (Sección 7ª) Sentencia no. 444/2012 de 27 julio
Member State Spain
Common Name link
Decision type Court decision in appeal
Decision date 27/07/2012
Court Provincial Court of Valencia
Subject
Plaintiff Unknown
Defendant ASESORIA DE COBRO Y GESTION SL
Keywords distance contracting, off-premises contract, right of withdrawal

Consumer Rights Directive, Chapter 3, Article 7 Consumer Rights Directive, Chapter 3, Article 8 Consumer Rights Directive, Chapter 3, Article 10

Lack of compliance with prior information obligation regarding withdrawal right does not entail the radical nullity of the contract. Stopping payment of the instalments is not deemed as exercising the right of withdrawal.
The plaintiff entered into a distance contract for the acquisition of a set of books on a monthly basis for 40 months. After 5 months, the plaintiff stopped paying the instalments, expecting that such conduct was to be understood as the withdrawal from the contract. Later on, when she was legally required to pay the due amounts to the trader, she alleged the lack of compliance of the trader with his duty to inform the consumer on her right of withdrawal prior to entering into the contract. She filed a counterclaim against the trader alleging the nullity of the contract based on such lack of compliance of the latter with his duty of information.
The court stated that failing to comply with this formal requirement (namely the prior information to the consumer regarding his/her right of withdrawal, as well as providing the latter with a form to exercise such right) cannot entail the radical and absolute nullity of the contract but rather the annullability of the same, which has to be enforced by the consumer before the court, and which does not erase the effects of the contract as if it had never existed, but rather gives the right to terminate it. This means that the contract will be deemed to have been terminated when the action succeeds, and that its effects are not deemed to have disappeared (as if it had been null and void ab initio). The court also added that stopping to pay instalments in consumer contracts consisting of multiple deliveries is not equivalent to exercising the right of withdrawal, which requires an express declaration by the consumer in this sense.
Does the lack of compliance of the trader with his duty to inform the consumer about his right of withdrawal entail the nullity or the annulability of the contract? Can stopping to pay the instalments be deemed as exercising the right of withdrawal?
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The plaintiff alleged termination of the contract when he filed his claim in the first instance (instead of claiming the contract to be declared null) and therefore lost the opportunity to introduce this new discussion before the appeal court.