When is a contract by telephone effective?

Whether a contract concluded over the phone is valid is determined by who the entrepreneur concluded it with. If it was an entrepreneur-entrepreneur relationship, as a rule, the contract concluded over the phone is considered valid. In the case of the entrepreneur-consumer relationship, for this to happen, the entrepreneur-seller has to fulfill certain obligations. What are the effects of concluding a contract over the phone with a consumer, and what with an entrepreneur?

Conclusion of a contract by telephone with the consumer

Regulations concerning the conclusion of a contract with a consumer can be found in the Consumer Rights Act (hereinafter: the Consumer Act, the Act).

Within the meaning of the Consumer Act, a contract over the phone is one of the contracts belonging to, inter alia, distance contracts. According to Art. 2 of the Act, a distance contract is a contract concluded with a consumer as part of an organized system of concluding distance contracts, without the simultaneous physical presence of the parties, with the sole use of one or more means of distance communication up to and including the conclusion of the contract.

It is worth paying attention to the last words of the quoted provision - "until the conclusion of the contract, inclusive". Therefore - the mere establishment, initiation of contact, until there is a clear and documented acceptance of both parties, and most of all the consumer, is not a conclusion of a contract.

A means of distance communication is any means that can be used for contact between the parties to the contract without the simultaneous physical presence of the entrepreneur and the consumer, e.g. letters sent by traditional mail, electronic advertising, telephone, SMS, radio, television, e-mail, etc.

As long as the arrangements made in the telephone conversation are not clearly confirmed by the consumer on a durable medium, the contract is not concluded, and any prior information provided during the conversation is treated as a proposal or offer.

What is a durable medium?

The Consumer Act defines a durable medium as a material or tool enabling the consumer or entrepreneur to store information addressed personally to him, in a way that allows access to information in the future for a period appropriate to the purposes for which this information is used, and which allows the stored information to be recreated unchanged.

So in practice, a durable medium is a form of recording that allows you to restore the recorded information in the future in an unchanged form (without the possibility of interfering with the content). A durable medium can be, for example, information in writing, printout, CD / DVD, SMS, flash drive, documents electronically signed with a digital signature, e-mail.

Attention!
A durable medium is not sending an e-mail with a link to the website where the consumer information is posted or the downloadable file on the website. The website may be changed in the future by the administrator-entrepreneur, so there is no condition that the content cannot be interfered with.

The consumer's lack of response on a durable medium does not constitute consent to the conclusion of the contract. And the performance of an unsolicited service (e.g. by delivering a product that was the subject of telephone calls and demanding payment) is at the risk and expense of the entrepreneur and does not impose any obligations on the consumer.

The provisions of the Consumer Act do not apply, inter alia, for telecommunications, financial and passenger transport services. A detailed catalog is presented in Art. 3 and 4 of the Act.

What are the obligations of concluding a contract by telephone with the consumer?

A contract over the phone is a distance or off-premises contract. Therefore, in the scope of the entrepreneur's obligations in connection with the telephone contract, Chapter 3 of the Consumer Act applies. According to it, the entrepreneur's obligations include informing about, among others:

• the main features of the benefit,

• your identification data,

• the total price of the benefit,

• method and date of payment.

A detailed catalog of what information the entrepreneur should provide can be found in Art. 12 of the Consumer Act.

The above information is an integral part of the distance or off-premises contract and may only be changed with the express agreement of the parties.

The information obligations should be fulfilled at the latest when the consumer expresses his will to be bound by the contract.

In the case of distance contracts, the entrepreneur is required to provide the above information in a manner corresponding to the type of means of distance communication used, legibly and expressed in plain language. Therefore, in the case of telephone contact - the information should be provided during the telephone conversation.

In addition, if the entrepreneur offers the consumer to conclude a contract by telephone, he is required to confirm the content of the proposed contract, recorded on paper or other durable medium. The consumer's statement on the conclusion of the contract is effective if it has been recorded (recorded, signed) on paper or another durable medium after receiving the confirmation from the entrepreneur.

The entrepreneur is obliged to provide the consumer with confirmation of the conclusion of the distance contract on a durable medium within a reasonable time after its conclusion, at the latest at the time of delivery of the goods or before the service begins.

If the consumer does not consent in writing or on another durable medium to the proposal to conclude a contract by telephone, the contract is invalid.

In summary, the conclusion of a contract over the phone with the consumer should take place according to the following steps:

1. The entrepreneur establishes telephone contact with the consumer.
2. During the interview, the entrepreneur should first of all provide his identification data, features of the service, price, as well as the date and method of payment.
3. After the telephone conversation, the entrepreneur sends the content of the contract to the consumer on a durable medium.
4. If the consumer sends back the declaration of conclusion of the contract on a durable medium, the contract is considered concluded.The trader should send the consumer confirmation of its conclusion, also on a durable medium.
5. If the consumer does not return the declaration of conclusion of the contract, the contract is not concluded, and everything that the entrepreneur fulfills for the consumer is considered as an unsolicited service.

Contract by phone between entrepreneurs

While consumers in relations with entrepreneurs are strongly protected by regulations, in the case of B2B (company-company) and C2C (private person-private person) relations there are no regulations dedicated to them. In such cases, the general provisions of the Civil Code should be applied. And according to Polish civil law, the written form for contracts must be expressly reserved by law.

This means that if the provisions do not reserve a written form for contracts, they may be concluded in any way: also by phone or orally. A contract concluded in this way has the same effects as a contract signed on paper.

Art. 66 of the Civil Code states that: "The declaration of the other party's will to conclude a contract constitutes an offer if it defines the essential provisions of this contract'.

If over the phone the two parties agree on the most important elements of the contract, which are primarily the subject of the contract and, for example, the remuneration, it is considered that the contract has been concluded in the form of an offer.

Attention!
No objection to the acceptance of the offer, if both parties are in a permanent business relationship, means consent to the conclusion of the contract. More information in the article: Offer submitted and the moment of concluding the contract - what should you know about it?

Permanence of economic relations occurs when the parties are bound by economic agreements in a longer period of constant cooperation between them. Incidental agreements of a given type, eg agreements concluded from time to time between the parties, which result in no longer cooperation, do not fall within the concept of "permanent relationship". The principle that failure to respond to the offer means acceptance of the offer does not apply to them.

If, during a telephone conversation, the entrepreneur submitting the offer stipulates that the condition for the validity of the contract is to read the content sent to e.g. over the phone is ineffective.

On the other hand, if during the telephone conversation the tenderer did not present any condition on which the effectiveness of the contract depends, then the contract concluded over the phone (and the tacit consent of the other party) is considered valid and the recipient is obliged to comply with its conditions.

It is unnecessary, as in the case of a consumer, to send the contract by e-mail and then accept its content.

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Withdrawal from the contract concluded over the phone with the consumer

As for consumers, the provisions on distance contracts apply in the event of withdrawal from a contract concluded over the telephone. So, in the case of concluding a contract by phone, the consumer may withdraw from the contract within 14 days without giving a reason or incurring costs.

Attention!
If the consumer has not been informed by the entrepreneur about the right to withdraw from the contract, then pursuant to Art. 29 has 12 months and 14 days to withdraw from the contract.

If the consumer submitted a declaration of withdrawal from the contract before the entrepreneur accepted his offer, the offer ceases to be binding.

Withdrawal from the contract concluded over the phone with the entrepreneur

As for entrepreneurs, as a rule, they do not have the right to withdraw from the contract. If the entrepreneur accepts the offer made to him, he is bound by it.

However, there is a situation when the entrepreneur can withdraw from the contract. Such a right is granted if the contract was concluded under the influence of a misrepresentation as to the essential content of the contract. In this situation, it is enough for the entrepreneur to make a written declaration to the bidder that he has been misled, and therefore the contract is evaded or not considered valid. The deadline for submitting the declaration is one year from the detection of the error.

As a result of misrepresentation, it is possible to withdraw from the contract only if the erroneous information related to a feature of the subject of the contract that is essential for the entrepreneur. If the incorrect information concerned a feature that the entrepreneur did not pay attention to (irrelevant to him) - he has no right to withdraw from the contract.