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The Warsaw Voice » Law » November 22, 2002
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E-Contracts and Consumer Protection
November 22, 2002   
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The E-Signature Act, now in force, and the Act on Providing Services Via Electronic Means, recently enacted, create the necessary basis for e-business to expand and, specifically, for new entrepreneurs to sell their products online.

Online sellers must bear in mind, however, that they need to comply with the Act on Protection of Certain Consumer Rights, effective for two years now, which places certain obligations on entrepreneurs involved in e-commerce.

"Contracts concluded at a distance" are entered into inter alia through electronic means, without the simultaneous presence of both contracting parties, between a consumer and an entrepreneur who ordinarily contracts consumer sales using online order forms, online advertisements, e-mail, telephone, fax and TV (e.g., teleshopping, teletext). In contrast, if an entrepreneur happens to conclude a contract e.g. by fax, in a manner which is unusual for him, he will not be subject to this regulation.

An entrepreneur cannot propose a contract by e-mail, telephone, fax or other means of electronic communication without the prior consent of the consumer. And in order to get such consent, the entrepreneur should notify the consumer of the commercial nature of his approach.

No later than at the moment of submission of a proposal to conclude a contract, the consumer should be informed, in an understandable and clear manner, of the following:

- details of the entrepreneur (name, address, registration number);
- price, and all price components (e.g., customs duty and taxes);
- mode of payment (cash, credit card, etc.);
- delivery: costs, time frame and mode;
- period during which the offer is binding;
- complaint procedures (which should be straightforward and in- expensive);
- costs of e-communication (if calculated other than according to normal tariffs).

Written confirmation of the above must be supplied to the consumer no later than at the moment contractual performance commences.

The consumer may rescind the contract within 10 days of delivery (with goods) or of concluding the contract (with services). If you rescind you have to return the goods, and the entrepreneur has to reimburse the entire price paid. Seeing as the consumer does not have to justify his right to rescind a contract, exercise of said right by consumers on a massive scale might potentially discourage many entrepreneurs from engaging in e-commerce.

A contract may not impose upon the consumer the obligation to pay prior to receipt of the goods or services. If the contractual parties do not agree otherwise, the entrepreneur must render contractual performance within 30 days of the consumer submitting a declaration on concluding a contract.

The entrepreneur may neither exclude nor restrict the consumer's statutory rights, even if a foreign law is chosen as the governing law for the contract.

This increase in the statutory protection of consumer interests
should encourage people to benefit more from the positive side of e-commerce. Let us hope that, on the other hand, the obligations and restrictions imposed on entrepreneurs will not discourage them from developing this potentially crucial area of the new economy.

Salans D. Oleszczuk Kancelaria Prawnicza Sp.k., ul. E. Plater 53, Warsaw, tel. (+48 22) 520 63 00, fax: (+48 22) 520 64 00, e-mail: warsaw@salans.com

Zbigniew Korba

The author is an associate at Salans Law Firm. He specializes in corporate law, mergers and acquisitions, e-commerce and banking law.

www.salans.com
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