Case law

  • Case Details
    • National ID: AP de Zaragoza (Sección 4ª) Sentencia núm. 176/2012 de 20 abril
    • Member State: Spain
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 20/04/2012
    • Court: Provincial Court of Zaragoza
    • Subject:
    • Defendant: Unknown
    • Keywords: defective sample, proof of negligence, right of withdrawal
  • Directive Articles
    Distance Selling Directive, Article 4
  • Headnote
    The exercise of the right of withdrawal must be clearly expressed by the consumer. Returning a defective product, within the expanded term granted to exercise the right of withdrawal when the seller has failed to fulfil the mandatory prior information/ documentation duty, does not automatically qualify as a withdrawal of the contract. The consumer must claim to be exercising the same at the time of returning the product to benefit from the legal regime regulating the right of withdrawal.
  • Facts
    The defendant purchased an electric puncher over the phone. The product was found defective and returned on that basis. The plaintiff received the product for repairing but then was informed by the defendant that she did not want the products back but reimburse of the price. The defendant filed a claim against the plaintiff stating that it had returned the product in exercise of the right of withdrawal. The defendant alleged that the plaintiff had not complied with the prior information/ documentation legal requirements and that, because of that, she had 3 months to return the product. The first instance court ruled in favour of the defendant and ordered payment of twice the price of the product.
  • Legal issue
    The court ruled that the facts indicate that the defendant did not exercise her right to withdrawal, rather she was returning a defective product in the frame of the contract between the parties.
  • Decision

    Is there an assumption of the exercise of the right of withdrawal when the consumer returns a product?

    Full text: Full text

  • Related Cases

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  • Legal Literature

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  • Result
    The court decide to partially repeal the decision awarded in the first instance and only awards the defendant the right to be reimbursed the price of the product instead of twice that amount.