Selected provisions of terms & conditions for e-shops

01 April 2020 | czech republic newsletters

Terms and conditions are an indirect arrangement that entrepreneurs and consumers both encounter when engaging in transactions. The common denominator of terms and conditions is that they cannot be negotiated and only remain to be accepted or not.

These days, when making a purchase online, the consumer usually acquaints themselves with the terms and conditions by agreeing ("clicking"). Before sending the order for goods or services, the consumer can read the terms and conditions by following a link.

Act No. 89/2012 Coll., Civil Code ("NCC") and Act No. 634/1992 Coll., on Consumer Protection ("CPA") contain rather complex regulation of what needs to be stated in contracts or terms and conditions for consumers. However, some entrepreneurs' terms and conditions still either do not contain the required information or provide incorrect information.

The NCC lists what entrepreneur ought to communicate to the consumer before concluding a contract. These include the conditions, time limit and procedures for exercising the right to withdraw from the contract within 14 days, i.e. the so-called "withdrawal clause". Entrepreneurs do not typically make mistakes here. In this connection, the consumer must also be provided with a standard withdrawal form.

Also, the right of withdrawal relates to the question of the costs of returning the goods. The entrepreneur must inform the consumer that if they withdraw from the contract, they will bear the costs of returning the goods. If it fails to do so, the consumer will be entitled to a refund.

The consumer is obliged to return the goods to the entrepreneur no later than 14 days after the withdrawal from the contract. The period for returning goods in the context of withdrawal therefore commences from the moment when the withdrawal takes effect and not – as is sometimes wrongly stated in the terms and conditions – from the delivery of the goods.

In addition, the consumer is obliged to return the goods, but does not have to return the packaging.

The entrepreneur shall return the money to the consumer, including the delivery costs that it received from the consumer under the contract, in the same manner and without undue delay, at the latest within 14 days of the withdrawal. However, the entrepreneur is not obliged to return the money received before the consumer hands over the goods or proves that they have sent them.

There are several exceptions where the consumer cannot withdraw from the contract and thus return the goods and/or services. For example, a consumer cannot withdraw from a contract for goods that have been adapted according to their wishes, such as leather products engraved with a monogram. Furthermore, a consumer cannot withdraw from a contract for delivery of a perishable good. This provision is aimed not only at food but also at medicines and flowers.

Sometimes entrepreneurs give consumers a gift together with the purchased goods. The consumer then exercises their right of withdrawal but retains the gift. To prevent this, we recommend that entrepreneurs conclude a so-called contract of donation with a resolutive condition. In this case, the terms and conditions shall state that if the consumer withdraws from the contract the contract of donation shall expire and the consumer must return the gift together with the goods.