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Withdrawal from a distance contract

Due to the dynamic development of e-commerce, a distance contract - such as contracts concluded via the Internet or telephone - is more and more often found in consumer trade. The consumer, when concluding such a contract, has no direct contact with the purchased product, which is why such transactions are particularly risky. Thus, the legislator made it possible for consumers to withdraw from a distance contract, providing them with a number of rights.

When is the contract concluded remotely?

The possibility of withdrawing from a distance contract was introduced by the Act of May 30, 2014 on consumer rights. Pursuant to its provisions, a distance contract meets three conditions:

has been concluded with the consumer as part of an organized system of concluding distance contracts,
the parties were not physically present,
distance communication means were used to conclude the contract.

Therefore, we include in this type of contracts those concluded in the online store, at the online auction, by phone or by e-mail.

What is the withdrawal period from a distance contract?

The withdrawal period depends on the fulfillment by the seller of the obligation to inform the consumer about his rights.

As a rule, the buyer has the option to withdraw from a distance contract within 14 calendar days, but if the seller does not inform the buyer about the right to withdraw from the contract, this period is extended to 12 months. This is called the consumer's right to reflection /

However, it should be noted that if the seller noticed a failure to comply with the information obligation before the expiry of 12 months and at the same time fulfilled this obligation, then the 14-day period is counted from the day the consumer is informed about the right to withdraw from the contract.

In order for the declaration of withdrawal from a distance contract to be submitted on time, it must be sent before its expiry, which means that in order to meet the deadline, the date of sending or forwarding the declaration is taken into account, and not its delivery.

The deadline to withdraw from a distance contract is calculated as follows:

if, for the performance of the contract, the seller has to hand over the product to the buyer to transfer the ownership of the product, the time limit starts from the day the buyer or another person designated by him, other than the carrier, took possession of the product,
if the products are delivered in batches, separately or in parts, the time limit starts from taking possession of the last batch, part or product,
if the contract involves the regular delivery of products for a specified period, the withdrawal period is counted from the date of conclusion of the contract.

What is the form of withdrawal from a distance contract?

Withdrawal from a distance contract is made by submitting a declaration of withdrawal to the seller. The Act does not specify one required form of withdrawal, the parties may agree on this matter in any way. Nevertheless, it should be ensured that the chosen form makes it possible to prove the mere fact of submitting the declaration of withdrawal, thus allowing the calculation of the dates of reimbursement of mutual benefits.

The declaration of withdrawal from a distance contract may be submitted in any form, however, it is recommended that it be made in writing, using a form or by electronic means, because this form allows to demonstrate the submission of the declaration and allows for the correct calculation of the deadlines for reimbursement of mutual benefits. .

Entrepreneurs may use an exemplary model withdrawal form, which is included in Annex 2 to the Act on consumer rights. If the seller additionally provides the option to withdraw from the contract by electronic means, the consumer may also use this form of submitting a declaration, without losing the possibility of using the withdrawal form template. If the consumer chooses the electronic way, the seller is obliged to immediately send the consumer on a durable medium the confirmation of receipt of the declaration of withdrawal from the contract.

It should be noted that the indicated forms are only preferred and it is not permissible to limit withdrawal from a distance contract only to the written form. Such a contractual provision will be considered a prohibited contractual clause.

Withdrawal from a distance contract and the obligation to return benefits

The provisions of the Act on Consumer Rights impose an obligation on the seller to return all payments made by the consumer, including, in principle, the cost of delivering the item. The seller has 14 days to do so from the date of receipt of the consumer's statement on withdrawal from the contract. Importantly, the reimbursement should be made in the same way as the buyer made it, unless he agrees to a different method of return that will not incur additional costs.

In turn, the consumer is obliged to return the purchased goods within 14 days from the date of withdrawal from the contract. The entrepreneur may also offer to collect the goods from the buyer himself.

The entrepreneur may withhold the reimbursement of payments made by the consumer until the item is returned or the consumer confirms its return.

The costs of returning the goods in the event of withdrawal from a distance contract shall be borne by the consumer, unless:

the entrepreneur did not inform the consumer about the obligation to bear them by the consumer,
the entrepreneur agreed to bear them.

Attention should be paid to the costs related to the withdrawal from a distance contract, the subject of which is the provision of services or the delivery of digital content that is not recorded on a tangible medium (e.g. an e-book). The consumer has the right to object to the delivery of this content before the deadline to withdraw from the contract, about which he should be informed by the seller. Failure by the seller to fulfill the information obligation on the loss of the right to withdraw at the time of consent to the delivery of such content means that the consumer does not bear the costs of providing services or delivering digital content not fixed on a tangible medium.

However, if the trader has complied with the information obligation and the consumer exercises his right of withdrawal, he must pay for the service that has already been fulfilled by the time of withdrawal. When calculating the price or remuneration, the terms of the contract should be taken into account, but in the event that the amounts determined in this way turn out to be too high, the market value of the service provided is taken into account.

Costs related to the return of items upon withdrawal from a distance contract:

Type of delivery and other circumstances	Who bears the costs of the return?
The consumer chose a product delivery method other than the cheapest one offered by the seller	The seller bears the costs of return up to the amount of the price for the cheapest of the methods of return offered by him
The consumer chose the cheapest of the product delivery methods offered by the seller	The seller bears the full costs of the return
The seller has agreed to bear the cost of return	The seller bears the full costs of the return
The seller did not inform about the right of withdrawal	The seller bears the full costs of the return

The responsibility of the consumer for reducing the value of things

The Act on consumer rights introduces the principle according to which the consumer is responsible for reducing the value of the item that he returns due to withdrawal from a distance contract. It is about reducing the value that occurs as a result of using it in a way that goes beyond what is necessary to establish the nature, characteristics and functioning of things.

Example 1.
When a consumer buys an item via the Internet, he or she can use it in the way that he would use it in a stationary store - e.g. he could check in a bicycle store whether the saddle is comfortable. Therefore, if the consumer rides a bicycle purchased by the online store on a trip and then decides that he wants to exercise the right to return the item, the reimbursement of the payment to the consumer will be reduced by the amount by which the bicycle's value has decreased as a result of using it.

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Exclusion of the right to withdraw from a distance contract

The catalog of distance contracts from which the consumer is not entitled to withdraw is included in Art. 38 of the Consumer Protection Act. This provision lists 13 types of contracts:

a contract for the provision of services, if the seller has fully performed the service with the express consent of the consumer, who was informed prior to the commencement of the service that he will lose the right to withdraw from the contract once the service has been provided by the seller;
a contract in which the price or remuneration depends on fluctuations in the financial market over which the seller has no control and which may occur before the deadline to withdraw from the contract;
a contract in which the subject of the service is a non-prefabricated product, manufactured according to the consumer's specifications or serving to satisfy his individual needs;
an agreement where the subject of the service is a product that deteriorates quickly or has a short shelf-life;
an agreement where the subject of the service is a product delivered in a sealed package, which cannot be returned after opening the package due to health protection or hygiene reasons, if the packaging has been opened after delivery;
an agreement where the subject of the service are products that after delivery, due to their nature, are inseparably connected with other things;
a contract where the subject of the service are alcoholic beverages, the price of which was agreed upon conclusion of the sale contract, and the delivery of which may take place only after 30 days, and the value of which depends on fluctuations in the market over which the seller has no control;
an agreement in which the consumer has expressly requested the seller to come to him for urgent repair or maintenance; if the seller provides additional services other than those requested by the consumer, or provides products other than spare parts necessary for repair or maintenance, the consumer has the right to withdraw from the contract in relation to additional services or products;
an agreement where the subject of the service are sound or visual recordings or computer software delivered in a sealed package, if the package has been opened after delivery;
agreement for the delivery of newspapers, periodicals or magazines, with the exception of a subscription agreement;
an agreement concluded through a public auction;
a contract for the provision of accommodation services, other than for residential purposes, transport of goods, car rental, catering, services related to leisure, entertainment, sports or cultural events, if the contract indicates the day or period of service provision;
contract for the supply of digital content that is not recorded on a tangible medium, if the performance began with the consumer's express consent before the deadline to withdraw from the contract and after informing the seller about the loss of the right to withdraw from the contract.