Monday, 25 June 2012

Inducement in doorstep selling contracts

In the last week's European news we could read about an action taken against Germany by the European Commission, urging Germany to stop infringing consumer protection in doorstep selling contracts. That caught my attention since Germany is known to actually try to go beyond the minimum level of harmonisation given in the Doorstep Selling Directive (85/577/EEC). This was one of the arguments raised against the introduction of the Consumer Rights Directive (2011/83/EU) with a maximum harmonisation character.

Apparently, while Germany gives some more rights to consumers concluding contracts in door-to-door situations, it also introduces one extra requirement for recognising that a contract was concluded 'at the doorstep'. Namely, consumers needed to be induced into entering into the contract. This is interesting, since this requirement actually reflects the economic rationale behind many provisions of the Doorstep Selling Directive. After all, it mainly aims at protecting consumers who were surprised by a salesman in situations they had not expected to have to negotiate a contract (i.e., outside business premises of the salesman when the consumer did not come out with an initiative to conclude a contract). It could be seen, therefore, that putting this requirement to paper should not infringe the consumer protection.

The European Commission points out, however, that the requirement of 'inducement' has not been mentioned either in the Doorstep Selling Directive or in the Consumer Rights Directive. Its explicit addition makes it harder to claim consumer protection since it may be difficult to prove that the contract was concluded under inducement. And so, in some German court cases consumers were unable to prove that the doorstep-selling situation was decisive for the signing of the contract because of previous visits by the trader. (Commission stands up for consumer rights) I wonder whether the European Commission's decision would have been the same if the burden of proof was placed on the trader, that is if he had to prove that there was no inducement instead of consumers having to prove its existence.

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