Legal Framework for Distance Contracts and Consumer Rights

2. Distance Contracts

Distance contracts are those in which the contractors are not physically present simultaneously. When these contracts are held as part of a business-to-consumer relationship, they will be governed by the provisions of Articles 92-106 of the LGDCU, provided the offer and acceptance are made exclusively through any technique of distance communication within a recruitment scheme run by the employer (Art. 92.1).

Ad exemplum, the Act lists a number of techniques for distance communication (print, letters, newspaper advertising with order forms, catalogs, etc.; Art. 92.2), and a number of scenarios to which such regulation is not applicable (sales through vending machines, contracts for the construction of buildings, etc.; Art. 93). Special rules also apply to commercial communications by email or other electronic media in distance contracts for goods or services (Article 94).

Key Regulatory Requirements

The most important notes of the regulation are:

• Commercial Character: All commercial communications shall clearly state their commercial character (Article 96).
• Pre-contractual Information: Before starting the recruitment process and in good time, the employer must provide the consumer with the price, delivery costs, characteristics of the goods or service, etc. (Art. 97.1).
• Express Consent: Express consent is required (Art. 99).
• Unsolicited Mailings: Unsolicited mailings are prohibited (Art. 100).
• Right of Withdrawal: There is a right of withdrawal (Articles 101 and 102). This right is also regulated in Art. 44 of the LOCM.

Contract Execution and Payment

There are specific rules regarding the contract, including delivery and payment, lack of enforcement, and replacing the goods or services (Arts. 103 to 106). Among these, given how often it occurs in commercial traffic, card payment deserves specific comment.

Card Payment and Fraud Protection

When the amount of monetary obligations arising from a distance contract has been fraudulently or improperly charged using a payment card number, the holder may demand the immediate cancellation of the charge. In such cases, the debit and credit entries in the accounts of the provider and the holder shall be made as soon as possible (Arts. 106.1 LGDCU and 46 LOCM).

It must also be kept in mind that the seller can always file a complaint for fraud or theft. If the purchase was effectively carried out by the consumer and cardholder, and the demand for repayment was not a result of exercising the right of withdrawal or resolution, the consumer shall be under obligation to pay the employer compensation for damages incurred as a result of this decision (Article 106).