Law update – new provision in the Consumer Rights Act
Law of May 30, 2014. on consumer rights had already talked about the possibility of returning goods purchased online – the problem, however, was that under the terms of the law, a person doing business and buying goods for an invoice… was not a consumer.
Fortunately, this state of affairs has changed thanks to the introduction of Article 38a into the law. It says that consumer regulations also apply to sole proprietors.
However, the same article stipulates that this only applies if the (purchase and sale) contract is not of a professional nature for the buyer.
The full wording of the article can be found in the body of the Law on Consumer Rights (Chapter 5, Article 38a)
The conclusions of Art. 38a
From the updated wording of the law, it is clear that persons engaged in business activities can withdraw from a contract within 14 days from the date of conclusion of the contract, which puts them on a par with consumers. However, there are several conditions.
First: the change applies only to sole proprietorships, which means that companies still cannot exercise their statutory right to return goods bought online for an invoice.
Second: the return of goods purchased on an invoice will be possible only if the purchase is related to business, but not of a professional nature. And it is this provision that raises questions, because what exactly is this professional character?
Which corporate purchase is professional in nature?
The Consumer Rights Law lacked a clear explanation of what the professional nature actually is and how to distinguish between purchases eligible for possible return and those that the trader will not be able to return.
The problem really concerns online stores, because it is their representatives who will have to properly assess the situation and give a refund for goods bought online or refuse to accept them.
It turns out that – as suggested by Art. 38a of the law – online stores should make decisions on the basis of… an entrepreneur’s CEiDG entry:
Example – corporate purchase devoid of professional character
Mr. Theodore runs a small advertising agency, where he employs five people. He purchased a refrigerator for the company’s kitchen. When the store delivered the equipment, the room was not yet ready, and as a result it was only a few days before Mr. Theodore decided to install the equipment.
However, it turned out that the refrigerator was too high, as another piece of equipment was ordered by mistake. Mr. Theodore will be eligible for reimbursement because the purchase is not of a professional nature – it is not directly used to provide business-related services.
Example – corporate purchase of a professional nature
The same Mr. Theodore decided after a few years to change his worn-out camera for a newer model. He purchased a camera and received one a week later as a birthday gift.
Unfortunately, due to the fact that the purchased goods are of a professional nature (Mr. Theodore is engaged in taking photographs on behalf of clients), return without reason is not possible. It will also not be possible to cancel a contract concluded online. Mr. Theodore will have to sell one of the cameras himself.
How do you decide which purchased goods are professional in nature?
Sometimes a problematic situation cannot be resolved by a quick scan of the entrepreneur’s entry in CEiDG. Some of the PKD codes are very capacious (they even fit several occupations performed) and unspecific, making it difficult to make a clear and fair assessment.
Some stores have protected themselves from similar situations by preparing contracts accordingly – the trader will have to confirm that the contract he is about to conclude is not professional in nature. In reality, however, such safeguards may not be enough, as a dissatisfied trader-consumer will still be able to report the purchased goods for return.
Another way out of the situation is to agree to a turnaround in any ambiguous situation – this will certainly save time and possible trouble, but will only work if such situations occur occasionally.
The final solution is to take legal action if it is impossible to reach an agreement with the store or the buyer.
