3-4/2005 UINL - Notarius International

Notarius International 3-4/2005 E. Brancós Núñez, The Right of Withdrawal and Function of the Notary 279
It must be concluded, in any event, that the right of
withdrawal is not a panacea for the lack of consent that
results from imperfect information or misinterpretation
of the outcome of a commitment. A right of withdrawal
that is afforded for a week or two gives the consumer
much less protection than that derived from well-established
general rules of contract and furthered by us, the
notaries, in our provision of information, advice and assistance
and in our establishing of consent and monitoring
of legality.
A right of withdrawal that is available for a short period
of time does not protect the consumer. It just allows
the supplier to draw a veil over any problems that there
might be with its commitment. It enables the supplier to
put the following argument to the consumer: you were
told, you did not withdraw and now it’s your problem.
The notary’s traditional dominance of real estate matters
certainly makes the right of withdrawal a rarity here.
People do not buy real estate in the same way that they
might buy books, for example: by post without prior inspection.
What is more, the mere fact of going to see a
notary, of having a meeting with him and of calmly talking
about a purchase precludes any idea of action being
taken without due consideration.
2. Identification of the subject of a right of withdrawal
2.1 Consumer relationship
The right of withdrawal is normally legislated upon in
the context of a consumer relationship. This takes the
form of a relationship in which a supplier acts in the
course of its business but a private individual does not act
in a business capacity (Germany, Austria, Spain, France,
the Netherlands…). Some countries have also tried to establish
an objective concept of consumer action but it is
ultimately the parties and their activities that define this
notion.
2.2 Types of contract concerned
Despite a few countries (Spain and Austria) laying
claim to a catalogue of consumer rights, the right of
withdrawal is not an established general right in all contracts
concluded with a consumer; a right of withdrawal
is only provided for in certain contracts.
Specifically:
- in Austria: hire purchase contracts, contracts relating
to residential property renovation services, contracts
governing the acquisition of a right of use, a right of exploitation
or ownership of an apartment, a single family
dwelling or real estate intended for the construction
of a single family residence, holiday contracts, contracts
for the use of immovable property, the law on the
supervision of securities, the law on insurance policies,
contracts concluded with dating agencies, joint venture
agreements and certain aspects of the capital market.
- in Estonia: doorstep selling, contracts concluded by
means of communication, contracts for the temporary
use of buildings, consumer credit and insurance policies.
- in France: commercial leasing agreements, contracts
of employment and for literary and artistic property,
correspondence courses, sale of goods on credit, life assurance
policies, marriage bureaus, contracts of sale for
immovable property, timeshare agreements.
- in Germany: distance selling, some forms of e-commerce,
doorstep selling, life assurance, consumer credit,
marriage bureaus, correspondence courses, mortgages
and security investments.
- in the Netherlands: distance selling contracts, timesharing,
door-to-door sales, preliminary contracts for
the sale and/or construction of dwellings.
- in Spain: sales transacted off commercial premises,
distance selling, timeshare agreements, the sale of immovable
property on instalment credit terms, consumer
credit and package holidays.
2.3 Right of withdrawal in conjunction with consumer
deeds
There is nothing to prevent a kind of protection also being
established in conjunction with a consumer deed. For
example: the rules on standard-form contract clauses may
also be of relevance in relationships between businesspersons,
one of whom is a major contractor using
contracts on a massive scale. The other party may or may
not be a consumer; he might also be the head of another
business. Normally, however, the rules on standard-form
contract clauses are to be considered in the context of the
whole system of consumer protection.
Rights of withdrawal are also to be found in relationships
that are not consumer relationships. In Spain, for
example, the right or option of withdrawal is an exceptional
one where contracts are concluded between private
individuals. It is provided for in the case of powers of attorney
(Article 1732 CC), in the case of deposit agreements
– at least in certain situations (Article 1776 CC)
and in the case of joint venture agreements (Article 1594
CC). But these are always exceptional cases.
A remedy fairly similar to the right of withdrawal is to
be found in the Commercial Code. Its Articles 327 and
328 govern sales on a trial basis or on approval, where
it is provided that: “… the purchaser reserves the right to
examine the goods and freely to cancel the contract if
they should not suit him”. This form of redress differs
from a right of renunciation in several ways. For example:
it applies only at retail level; rejection may follow
only from the objective condition or functioning of the
item and not from contractual terms and conditions; it is
customary to consider a sale incomplete until such time
as the purchaser has examined the goods and formed the
intention to acquire them (pending which, the risk of loss
in the event of fortuitous circumstances or force majeure
lies with the vendor – a point that is not made particularly
clear in the case of a right of renunciation).
The situation in France is also worth mentioning. The
law of 23 December 2000 creates a right of withdrawal or
cooling-off period for the benefit of a non-commercial
purchaser of residential property. The law also adds an
undertaking in relation to the sale of land within a development.