3-4/2005 UINL - Notarius International

282 E. Brancós Núñez, The Right of Withdrawal and Function of the Notary Notarius International 3-4/2005
rise to a rescission option that differs from arbitrary
renunciation. A lack of information has to be proven.
That is not arbitrary renunciation. It is necessary to show
that the information was not sufficient and proof of this
leads us directly to the judicial process. If it is necessary
to prove good cause in order to extinguish the effects of
a contract this constitutes cancellation and not arbitrary
withdrawal.
5.2 Unfair terms
Nor does the right of withdrawal follow from the existence
of an unfair term. Such a term is deemed not to
exist in the contract by virtue of the doctrine of partial invalidity.
Renunciation does not add anything at all.
Nor is its origin to be found in the need tangibly to acknowledge
the subject matter of the contract. The old
form of sale “on trial” or “on approval” would apply
here. On the other hand, it would be difficult to justify in
transactions such as timesharing where it would, on the
whole, be unusual for a purchaser to go and see a property
within 14 days of the contract if he has not already
done so. Or in the case of an insurance policy, where benefits
are usually paid out long after the one month normally
stated as the final deadline for exercising a right of
withdrawal.
Nor in the case of defects of form giving rise to the
non-existence of a contract.
Justification for a right of withdrawal is to be found
in the need to remedy ill-considered acts occasioned by
excessively aggressive sales techniques. In that case,
however, it is absurd for it to apply in cases where a notary
is involved. The mere fact of attending the offices of
a notary, the provision of explanations by the notary and
the services that he can render all militate against any
possibility of an ill-considered act.
However, protection is not afforded to a purchaser just
by the veracity of the terms in the contract that he has
signed. There are also other laws, regulations or even circumstances
which can have a decisive influence on the
contract: rules governing foreign investment, relating to
capacity or ability to make disposals, on tax, the economic
regime of a marriage, environmental protection,
land charges and property commitments etc. which the
consumer is not going to know about unless he takes specialist
advice or counsel. Even though the fundamental
aim of the right of withdrawal is to prevent ill-considered
deeds, that is to say to promote responsible choices, the
right of withdrawal does not help to enlighten him: someone
who does not know the rules cannot have any idea of
their consequences. An unknown danger cannot be
feared. Hence the protection afforded by a right of withdrawal
is illusory because it is – primarily – based on a
supposition that is just as false: namely, that the consumer
is aware of everything that might influence his decision.
He lacks both informed consent, which it is the
function of the notary to achieve, and the essential foundation
on which to base his contractual consent. The right
of withdrawal is even misleading because it leaves a purchaser
in ignorance; he cannot foresee something the existence
of which he is unaware.
5.3 Cooling-off period
It must perforce be concluded that, given the need to
protect purchasers (whether consumers or not) from illconsidered
deeds, the cooling-off period is more advantageous
than the right of withdrawal. The cooling-off period
is set out in the French law of 23 December 2000
(notification and transmission of draft authenticated deed
+ 7 day cooling-off period) and in German law (Article
17(2)(a) of the BeurkG) and is undoubtedly more effective
than the right of withdrawal – particularly when one
considers that a sale of real estate normally involves a
mortgage loan that would have to be repaid on the exercise
of a right of withdrawal, thus making it necessary for
the whole amount to be kept on deposit throughout the
whole time that the right of withdrawal could be exercised.
A short duration serves no purpose at all; a long duration
impedes the transaction.
There is also a marked tendency on the part of consumers
to stop several purchase transactions at once
thanks to the right of withdrawal, which leads us to suggest
as an alternative route a certain degree of causation
or justification for the right of withdrawal. For example:
the barring of a right of withdrawal where the clauses in
a contract exactly follow the provisions that the law lays
down as supplementary terms and where the contract
item has been the subject of prior inspection. If one
knows the object in question, if one accepts the price and
if the contract terms exactly follow what is laid down by
law to fill a gap in an express agreement, it is impossible
to see why a right of withdrawal should be allowed – except
to satisfy the unsubstantiated whim of a purchaser!
5.4. Final conclusions
Finally, reverting to principle, even on a less exacting
and detailed analysis of the right of withdrawal it would
seem to be a means of enabling the legislature to “sleep
peacefully” since it affords the consumer purchaser a
wide degree of protection. However, on a careful analysis
of the role of the right of withdrawal by reference to
unfair terms (no role), imperfect information (the solution
is a rescission action and not a right of withdrawal)
or the conclusion of an ill-considered contract (in a
complex contract it creates the false illusion that the consumer
has a period in which to respond to any kind of
problem that he is not capable of envisaging) it must be
concluded that the right of withdrawal is of very little
use.
It can only be effective in the context of the conclusion
of a contract of minimal difficulty or complexity where
very aggressive marketing methods are used.
This is not the case with real estate transactions,
where the only measure that might make any sense is the
cooling-off period – which is always implicit where a notary
is involved.