An Entrepreneur's Right to Withdraw from a Distance Contract: New Consumer Protection Rules in Force from January 2021
We wrote before the summer holidays that new provisions would appear in January 2021 giving entrepreneurs new rights: An Entrepreneur Protected Like a Consumer: E-commerce Must Prepare for Changes.
One of these rights is the right of an entrepreneur to withdraw from a distance contract, but this is possible only in certain situations, which we describe below.
Groups of Entrepreneurs
Among entrepreneurs we distinguish:
- natural persons (running a sole proprietorship),
- legal persons (for example, limited liability companies, joint-stock companies, registered associations, foundations),
- organisational units without legal personality to which the law grants legal capacity (general partnerships, professional partnerships, limited partnerships, limited joint-stock partnerships, limited liability companies in organisation, joint-stock companies in organisation).
The Entrepreneur Who May Withdraw from a Distance Contract
The new right has been granted only to entrepreneurs in the first group, as follows from the wording of Article 38a of the Consumer Rights Act. Under that provision, only a natural person may withdraw from a distance contract if that person concludes a contract directly connected with their business activity and the content of the contract shows that it is not of a professional nature for that person.
Example: Mr Marek, who runs a sole proprietorship selling natural cosmetics, ordered a coffee machine online for his premises. He asked the seller to issue the invoice in the name of his business.
In this situation Mr Marek will be able to withdraw from the distance contract without giving a reason, because he has no specialist knowledge of coffee machines, so the purchase of such equipment was not of a professional nature for him. It would be different if the subject of the sale agreement were, for example, ingredients needed to produce the cosmetics he sells.
Identifying an Entrepreneur Who May Withdraw from a Distance Contract
Under the new provision, the assessment of whether a given contract is of a professional nature for the entrepreneur should be based, in particular, on the subject of that entrepreneur's business activity as made available under the provisions on the Central Register and Information on Economic Activity (CEIDG).
In practice, however, this would mean checking the subject of the customer's business activity (the business activity codes, PKD) each time in the publicly accessible, free CEIDG register (available at https://prod.ceidg.gov.pl/CEIDG/CEIDG.Public.UI/Search.aspx). For those running online shops with a large number of orders, this may prove impossible in practice. Even where the seller does assess, on the basis of the CEIDG data, whether the contract would be of a professional nature for the customer, this may turn out to be insufficient. What matters for assessing the professional nature is the business actually conducted by the entrepreneur, not the PKD codes entered by the entrepreneur in CEIDG (entrepreneurs often enter some PKD codes for possible future use; in such cases the deciding factor for whether the entrepreneur may withdraw from the contract will be the business activity the entrepreneur actually conducts), and in practice this can be verified only at the stage of a possible court dispute.
Time Limit for Withdrawing from the Contract
An entrepreneur may withdraw from a distance contract within the same time limit as a consumer: in both cases it is 14 days. In the most common cases, this period will run from the date on which the parcel is collected from the courier or from a parcel locker.
Example: Mr Marek, who runs a sole proprietorship selling natural cosmetics, ordered a coffee machine online for his premises. On 10 January 2021 he received a text message saying that the parcel was in a parcel locker and that he had 48 hours to collect it. Mr Marek collected the parcel only on the next day (Monday, 11 January 2021). The time limit for withdrawing from the distance contract will expire on 25 January 2021 (Monday).
Legal basis:
- Act of 30 May 2014 on Consumer Rights (consolidated text: Journal of Laws of 2020, item 287, as amended)
- Act of 23 April 1964: Civil Code (consolidated text: Journal of Laws of 2020, item 1740, as amended)
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