3-4/2005 UINL - Notarius International

280 E. Brancós Núñez, The Right of Withdrawal and Function of the Notary Notarius International 3-4/2005
There is also a cooling-off period under German law.
Since 2002, the authentication procedure has included a
fundamental obligation on the notary responsible for
recording a deed: he is obliged to ensure that the legal intentions
of the consumer are expressed in person either
by the consumer himself or by a person whom he trusts
and that the consumer has been afforded sufficient time
to reflect on the content of the deed (Article 17(2)(a) of
the BeurkG). In some consumer contracts the notary fulfils
that duty by communicating the wording of the deed
to the party concerned at least two weeks before the notarisation
date.
In the Netherlands, since 1 September 2003, there has
been a three-day right of withdrawal for a consumer who
signs a preliminary agreement to purchase a dwelling if
that agreement is signed as a private deed rather than in a
contract drawn up by a notary (when there is no right of
withdrawal).
3. The right of withdrawal and unfair terms
One of a notary’s essential functions consists of monitoring
legality. The question that therefore arises here is
whether that function can be adequately replaced by automatic
rules affording protection (partial nullity in the
case of unfair terms, interpretation of unclear terms in a
purchaser’s favour, clauses more favourable to the consumer
carrying more weight in the event of a discrepancy
between general and special conditions etc.) It should
be noted that any clause that is contrary to a binding rule
of law has to be considered unfair. Prima facie, therefore,
the monitoring of legality by a notary would not appear
necessary since clauses that are invalid or that simply result
in an abnormal contractual imbalance to the detriment
of a consumer can always be declared null and void.
The notary’s involvement would not lend any more validity
to an instrument once the consumer protection rules
come into play, notwithstanding that involvement.
It must be said, however, that this is a somewhat simplistic
view of the problem.
Hence, for example:
- There are aspects of the monitoring of legality which
go beyond the relationship between the parties –
such as rules on foreign investments, the evaluation of
capacity and the power of disposal etc.
- Some rules apply because of the contracting parties
themselves rather than because of the agreement, so
that they vary according to who the parties to the contract
might be: for example, rules relating to the economic
regime of a marriage.
- An ex post facto declaration of invalidity of a clause –
or of the whole contract if that clause is a crucial one –
is not the best solution. A subsequent returning of
counter-consideration always presents difficulties – requiring
a judicial decision with all the attendant and inevitable
problems of delay and breach of contract
claims. It involves contentious legal proceedings that
are even more traumatic than a notary’s preventative
solutions affording legal certainty. A solution is not to
be found in legal proceedings but in the means of
avoiding them. The proliferation of consumer arbitration
schemes to lessen the mushrooming of litigation
on consumer matters is clear proof of the inadequacy of
an “automatic scheme” of protection.
In any event, protection against unfair terms is afforded
through the doctrine of partial invalidity and not
through the right of withdrawal. Given that partial invalidity
simply means that the clause does not exist whilst
the rest of the contract subsists, the right of withdrawal is
irrelevant. It cannot protect against a non-existent clause.
4. The right of withdrawal and prior information
Legislation safeguarding the rights of consumers provides
for mandatory information to be necessarily included
in contracts concluded between suppliers and consumers.
It covers material features as well as the content
of rights and obligations binding on the two contracting
parties and particularly includes information on the right
of withdrawal, where applicable, and the circumstances
in which it can be exercised. All countries are in agreement
on this point.
4.1 Sanctions
Failure to include mandatory information has the following
consequences:
- In Austria: in timeshare agreements the period within
which the right of withdrawal has to be exercised does
not begin to run until all of the information is available
(EU directive), with a deadline of three months from
receipt of information on the right of withdrawal.
- in England and Wales: a rescission action within three
months of conclusion of the contract and delivery of
the goods.
- In Germany: the period during which the right of withdrawal
has to be exercised does not begin to run until
the trader or manager has fulfilled his contractual obligations
with regard to information (Article 312(d)(1) of
the BGB).
- In Spain: LATBI (Articles 8 and 9, timeshare agreements)
rescission action within three months. LOCM
(Articles 44-5, distance selling) rescission action within
three months.
Legislation safeguarding consumers has created systems
to make them aware of relevant information with regard
to the objective features of goods as well as the
binding content of the contract. That information has to
be incorporated in the contract. In some countries, such
as Germany and Spain, information contained in advertising
is binding on the supplier even if it is not included
in the contract.
However, there are no systems in existence that can
guarantee that the requisite information is understood.
Nor are there any systems in existence capable of ensuring
that a consumer is told of the fact that certain personal
circumstances applicable to a particular contracting
party could influence the outcome of the contract and
lead to unforeseen consequences. For example: the effects
of the economic regime of a marriage, legislation on