Doorstep Selling

From Max-EuP 2012

by Bettina Heiderhoff

1. Subject matter and purpose of the law on doorstep selling

The term doorstep selling derives from consumer protection law (consumers and consumer protection law). Doorstep selling is a sales method wherein a trader concludes contracts with a consumer away from his business premises.

In its most basic form, the technique involves a contract concluded literally ‘on the consumer’s doorstep’ during a visit by a trader. In such a situation, the consumer is restricted in his freedom to make decisions and is, therefore, in an inferior position when negotiating. He is not adequately prepared when he is faced with a vendor or salesman and concludes contracts that he would not make were he to think it over sufficiently. The consumer in this situation does not act from objective reasons but is motivated by other factors such as surprise, a desire to get rid of the salesman, a desire to do him a favour, or even a feeling that he is being forced into a decision. At the same time, the consumer is not in a position to compare the quality or the price of the goods with other products or offers. This is known as the ‘element of surprise’ and it is in just such a position that the consumer falls under the protection of the law on doorstep selling. The central measure to protect the consumer is a mandatory right of withdrawal.

2. Tendencies in the development of the law and typical means of protection

a) Development within Europe

Doorstep selling was already regulated by law in Belgium, France, Luxembourg, the Netherlands and Sweden as early as the beginning of the 1970s. The European Commission also began to take notice of the problem around this time, but, after extensive preparatory work, the Doorstep Selling Directive did not come into force until 1985. In the meantime, Denmark, Finland and Austria, none of which were members of the European Union at the time, had established corresponding provisions. The implementation of the Directive in those Member States that did not already have such laws, however, occurred slowly; in several cases, it was not completed until after the expiry of the 1987 time limit.

The Doorstep Selling Directive (Dir 85/77) is intended to guarantee adequate and harmonized protection for the consumer throughout the European Union. It was the first directive in consumer contract law and is—in contrast to the Product Liability Directive (Dir 85/374) (product liability)—a minimum standard directive. One special characteristic is that—in terms of increasing trading volume—it is not aimed at improving the Single Market. It does not strengthen doorstep selling, but merely alters the level of protection offered to the consumer. As a consequence, the legislative competence of the European Union in this respect is often (correctly) doubted.

In terms of content, the Doorstep Selling Directive is even more fragmentary than later directives. By following the principle of minimum harmonization, it allows the Member States to implement, or maintain if they already exist, more favourable provisions for consumer protection when concluding doorstep contracts. This has led to considerable differences in the protection level afforded consumers throughout the European Union.

Member States may even choose to completely prohibit doorstep selling, or at least maintain an existing prohibition, an option many have taken advantage of. Commercial laws in Denmark, France and Luxembourg contain prohibitions on the doorstep sale of certain classes of goods. Licensing requirements for specific products or contracts are also common in commercial laws. The ECJ has already, in several instances, explicitly approved such prohibitions. Recently, for example, it declared an Austrian prohibition on the doorstep sale of silver goods to be compatible with the Directive as well as with the rules on the free movement of goods (ECJ Case C-441/04 – A-Punkt [2006] ECR I-2093).

b) Range of covered contracts

According to Art 1 and Art 3 Doorstep Selling Directive, certain contracts are not within the scope of application of the Directive. Here, however, many Member States go beyond the provisions of the Directive. Only some states, such as Greece, Poland, Italy and the United Kingdom, have adopted the list of excluded contracts (including, amongst others, contracts of immovable property and insurance contracts) in its entirety. In contrast, Latvia does not exclude any kind of contract while the doorstep selling of foodstuffs and beverages is not allowed in Spain, for example. One conceivably problematic provision can be found in German, Lithuanian, Maltese and Spanish law. Unlike the Directive, these legal systems exclude contracts that have been concluded in front of a notary.

Contracts for which the payment does not exceed €60 may be excluded by the Member States. While many Member States have adopted this option, Denmark, France, Greece and Hungary have not. Additionally, the limit varies (from €10 in Poland, through €34 in the Netherlands, up to €35 in the United Kingdom).

As the Directive is designed to protect the consumer, who is in a typically inferior position, it covers only certain dealings. First, it must be a contract concluded between a consumer and a professional trader. Secondly, the Directive is only applicable to contracts for the supply of goods or services—although, according to the ECJ, contracts of guarantee are also included (ECJ Case C-45/96 – Dietzinger [1998] ECR I-1199) (suretyship (modern law)). Thirdly, it has to be a case of so-called ‘doorstep selling’. This term, however, is something of a misnomer as the Directive covers not solely those contracts concluded on the consumer’s actual doorstep, but also any contract concluded away from the trader’s place of business (Art 1). The Directive also initially mentions contracts that are concluded during an excursion organized by the trader such as so-called promotional trips.

A typical doorstep contract is one concluded during a visit by the trader to the consumer’s home or that of another consumer. Visits to the consumer’s place of work are also covered. However, when the visit takes place at the consumer’s express request it is not covered by the Directive. On this point a number of implementation acts deviate from the Directive (notably in Denmark, Italy, France and Poland).

Finally, whether the actual conclusion of the contract takes place ‘on the doorstep’, or in an equivalent situation (‘under similar conditions’), is not considered important. According to Art 1(3) and (4) Doorstep Selling Directive, it is sufficient that the consumer merely ‘makes an offer’ in the relevant situation. This even applies if the offer in question is not, at that time, binding (as is the case in most European legal systems). Again, some national legal systems extend the length of time over which the protection is valid. Thus, in Germany, for example, those contracts in which the consumer executes his declaration of intention at the trader’s business premises, or in front of a notary, whilst in the aftermath of the ‘surprise’, are still regarded as doorstep contracts.

c) Means of protecting the consumer

According to Art 5 Doorstep Selling Directive, the consumer must have the opportunity to withdraw from the contract within a period of not less than seven days. The purpose of this ‘cooling-off’ period is to give the consumer a fair chance to make a free and reasonable decision on the contract. Looking at it in a theoretical way, the doctrine of pacta sunt servanda is not breached, but strengthened. Only a contract that has been concluded with true freedom of contract is finally binding. So long as the consumer only contracted because he was taken by surprise, he must be able to withdraw his consent.

Here again, the Member States have used their freedom of installing a higher level of protection for the consumer. This is, in part, done by extending the right of withdrawal and in part by adding other protective measures.

While France and the United Kingdom only grant the minimum period of seven days for the withdrawal, in most Member States the time given for consideration is two weeks. According to the Directive, the beginning of this period is linked solely to the delivery of the notification of the right of withdrawal. However, in Belgium, France, Malta and the United Kingdom, the date of the conclusion of the contract is decisive in principle. In contrast, in the Netherlands, the beginning of the period is dependent on the trader rendering notice of the contract at the Chamber of Commerce. In Denmark, Slovenia, Sweden and Hungary, the beginning of the period for the supply of goods is subject to their delivery, and for services, to the conclusion of the contract.

The consumer must be informed about his right of withdrawal by the trader and this notice has to be given, in written form, at the time of the conclusion of the contract. The Directive does not explicitly state the consequences of a failure of the trader to comply with this duty to inform. However, the ECJ stated in the Heininger decision (ECJ Case C-481/99 – Heininger [2001] ECR I-9945) that the period of withdrawal may not be limited when the notice is not supplied. In the Hamilton decision, the ECJ added that Member States may stipulate a limitation when both parties have fully performed their contractual duties (ECJ Case C-412/06 – Hamilton [2008] ECR I-2383).

Often, the national law imposes stricter conditions on both the form and, in part, the content of the information provided by the trader. If the information is not provided, sanctions range from the extension of the withdrawal period, as stipulated by the Directive, through the non-enforceability or invalidity of the contract (eg England, France, Greece, the Netherlands, Spain, Hungary) and up to fines in the case of a breach of information duties (eg England, France, Greece, Italy, Poland, Hungary).

The consumer is released from the contractual duties by prompt and timely withdrawal. The detailed legal effects of the withdrawal, particularly with respect to the return of payments made or goods received, are governed by national laws and exhibit notable differences amongst the Member States. One particularly controversial aspect is that of the extent to which the Directive allows national law to dictate how much financial disadvantage the consumer must take upon himself when the right to withdraw is exercised at an extremely late date. Whatever the case may be, however, the right of withdrawal must not be undermined by such financial risks.

There is no option, under any circumstances, for the consumer to waive either the right of withdrawal or the right to notice in this regard and any such waiver is considered void under the Directive.

Since the Doorstep Selling Directive is the first consumer protection directive of civil law, it does not define its relationship to other directives. As a consequence, there can be overlaps with regard to the information duties (such as those pertaining to consumer credit) and withdrawal rights (such as those attached to timesharing rights in immovable properties) in other consumer directives. The ECJ has decided, in the Travel Vac-decision (ECJ Case C-423/97 – Travel Vac [1999] ECR I-2195), that such directives are concurrently applicable so long as there is no provision that excludes such application. Since the standard of the Doorstep Selling Directive is particularly undemanding, it can be assumed, in the event of such an overlap, that the stricter rule of the other relevant directive is to be complied with.

3. Expected development and harmonized law

The harmonized law (Principles of European Contract Law (PECL), UNIDROIT Principles of International Commercial Contracts (PICC), CISG (sale of goods, international (uniform law)) does not contain any rules on doorstep selling because it does not cover consumer contract law.

In the Draft Common Frame of Reference (DCFR), the definition of doorstep selling is wider than elsewhere. According to Art II.-5:201 DCFR, a consumer may withdraw from all contracts for the supply of goods, services or personal security if the consumer’s offer or acceptance was expressed away from his or her business premises.

The new directive on consumer rights COM (2008) 614 will replace the Doorstep Selling Directive. The existing, fragmented law of consumer protection will be made more consistent by replacing four directives with one directive that aims for full harmonization. For this purpose, the consumer shall have a period of 14 days to withdraw from almost any off-premises contract (Art 12(1), 2(8)). The €60 limit will be abolished. The current consolidated version excludes the withdrawal from service contracts only after the service has been fully performed or where the consumer has specifically requested the trader to carry out urgent repairs. A new concept is followed as to the expiration of the withdrawal period if the trader has not provided the consumer with the information on the right of withdrawal correctly. The period will then expire twelve months from the end of the initial withdrawal period.

Literature

Peter Rott, Die Umsetzung der Haustürwiderrufsrichtlinie in den Mitgliedstaaten (2000); Willem Lodewijk Valk, ‘Wanneer is een bedenktijdregeling gerechtvaardigd?’ in Jac Hijma and WL Valk (eds), Wettelijke bedenktijd, preadviezen Nederlandse Vereniging voor Burgerlijk Recht (2004) 87; Martin Schirmbacher, Verbrauchervertriebsrecht (2005); Geraint Howells and Stephen Weatherill, Consumer Protection Law (2006); Bettina Heiderhoff, Gemeinschaftsprivatrecht (2nd edn, 2007); Martin Hans Schulte-Nölke, Consumer Law Compendium (2007); Marco Loos, ‘Rights of Withdrawal’ in Geraint Howells and Reiner Schulze (eds), Modernising and Harmonising Consumer Contract Law (2008) 237; Paraskevi Paparseniou, Griechisches Verbrauchervertragsrecht (2008) § 2.

Retrieved from Doorstep Selling – Max-EuP 2012 on 25 May 2022.

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