The consumer and user right of withdrawal under consumer and user law

El derecho de desistimiento de los consumidores y usuarios en virtud de la legislación sobre consumidores y usuarios

What is consuming?

According to the Royal Spanish Academy, to consume is ‘to use foodstuffs or other goods to satisfy needs or desires’.

The ‘desires’ part is important to understand the world in which we live insofar as, nowadays, citizens in countries with a certain industrial and economic development no longer consume strictly out of necessity, but acquire products that are not essential. This is what we know as consumerism or consumer society.

This massive consumption of goods and services has required a regulation to organise it: the Texto Refundido de la Ley General para la Defensa de Consumidores y Usuarios ( hereinafter, ‘Law’ or ‘Consumer Law’). According to this regulation, the concept of consumption is understood from the perspective of the parties involved in it. In this sense, the Law speaks of the legal bond that arises between the person who provides the purchased good (or the service rendered) and the user who acquires the good with the aim of consuming it.

In a consumer society, it often happens that, after making a purchase, we end up changing our mind about the product we have bought. This may be because the product does not meet our expectations (this aspect has increased with the advent of e-commerce) or simply because we have reconsidered and no longer want to make the purchase.

The Consumer Law guarantees that we can retract our purchase decisions through the so-called ‘right of withdrawal’. This is defined as the consumer’s possibility to ‘withdraw from the contract (…) without having to justify his decision and without penalty of any kind’.

The consequence of exercising this right is the obligation of both parties to reimburse the performance of the contract concluded between them. This means that the seller will reimburse the consumer for the amount paid for the product, and the consumer will return the product to the seller.

Conditions for the validity of the exercise of the right of withdrawal

As with everything else, for the exercise of withdrawal to be valid, a number of conditions must be met:

  • The user must inform the trader of the withdrawal within the established parameters in terms of time and form.
  • To this end, the trader is obliged to inform the consumer about his right and how to exercise it, at the time of signing the contract of sale (or, where applicable, the provision of services).
  • Sufficient proof of the wish to withdraw must be provided, e.g. by means of a document provided for this purpose or the return of the product.
  • The trader may not impose any penalty on the consumer for exercising his right of withdrawal. This means that withdrawal cannot entail a cost for the consumer. Occasionally, the consumer may have to bear the distribution/transport costs of returning the product to the seller (provided that the consumer has been informed in advance).
  • As far as time limits are concerned, the minimum time limit provided for by law is 14 calendar days from receipt of the purchased product by the consumer.

Possible exceptions to the exercise of the right of withdrawal

Finally, it should be borne in mind that, on occasions, compliance with the aforementioned conditions is not sufficient to be able to legitimately withdraw from a purchase. This is because the Consumer Law contemplates a series of exceptions which, if they occur, make it impossible to exercise this right.

In particular, the law makes a distinction in cases of contracts concluded at a distance or away from business premises. In this context, the right of withdrawal does not apply:

  • In the case of the provision of services, when the service has been fully performed.
  • When the price of the good or service depends on market fluctuations occurring within the withdrawal period, without the entrepreneur being able to control it.
  • Personalised goods (made to the consumer’s specifications).
  • Goods that deteriorate or expire quickly.
  • Sealed goods, not suitable to be returned unsealed for health or hygiene reasons.
  • Recordings (video or sound) or sealed software which have been unsealed by the consumer.
  • Daily newspapers, publications, magazines.
  • Accommodation services (other than housing), transport, car rental, food, leisure activities.
  • Digital content (on a non-material medium).

In conclusion, within the framework of this new understanding of consumption, the Law places the user at the centre of protection by setting out the right of the user to change his or her mind. However, it also takes the entrepreneur into account when defining certain limitations that counterbalance the other side of the scale.

 

rticle written by

Sofia AnidoSofía Anido

Attorney –  Privacy & IP

sofia.anido@metricson.com

 

 

About Metricson

With offices in Barcelona, Madrid, Valencia and Seville and a significant international presence, Metricson is a pioneering firm in legal services for innovative and technology companies. Since its inception in 2009, it has advised more than 1,400 clients from 15 different countries, including startups, investors, large corporations, universities, institutions and governments.

If you would like to contact us, please do not hesitate to write to us at contacto@metricson.com. We look forward to talking to you!

Talk with us

958 558 442

Offices

Tuset, 19 - 2º, 3ª
08006 Barcelona
931 594 620

Javier Ferrero 10,
28002 Madrid

Paseo de Ruzafa 11, 6º, 12ª
46002 Valencia
960 500 761

Av. de la República Argentina, 25
41011 Sevilla

    Responsable: Metricson S.L.P.U.
    · Finalidad: Resolver tu petición o duda.
    · Legitimación:  Interés legítimo en responder cualquier cuestión planteada por ti.
    · Destinatarios: Prestadores de servicios tecnológicos, como encargados del tratamiento, que seguirán siempre nuestras instrucciones.
    · Derechos: Puedes acceder, rectificar, suprimir o solicitar la portabilidad de tus datos personales, así como oponerte o limitar el tratamiento de los mismos dirigiéndote a privacy@metricson.com.