The declaration of the state of alarm has evident consequences in the contracts in which consumers intervene. RDL 11/2020, of March 31, of complementary urgent measures against COVID-19, among many other issues, implements in its article 36 certain consumer protection measures related to the purchase of goods and the provision of services, whether or not not of successive tract, whose execution is impossible as a consequence of the application of the measures adopted in the declaration of the state of alarm.
Purchase and sale of goods or provision of services, whether or not they are a successive tract
The premise is to try a solution negotiated in good faith between the service provider and the consumer that restores the reciprocity of interests in the contract. By way of example, the offer of substitute vouchers or vouchers for reimbursement may be proposed, which must be expressly accepted by the consumer or user. If the parties cannot reach an agreement within 60 days, the consumer will have the right to terminate the contract within 14 days.
Although it is subject to interpretation, it seems that the negotiation must be attempted and exhausted in good faith, so an intransigent stance by any of the parties, would also lead to having to exhaust the 60-day period before urging the termination of the contract ( during the expected period of 14 days). In any case, this will most likely be the result in practice, and any claim will extend this period much longer.
It will be important to adequately manage and document both the solution attempts and the resolution in due course, since it is easy for certain providers to “shut up for an answer”, just as certain consumers can “focus” on the solution they may want to impose.
In any case, unfortunately, the solvency and viability of the provider will have to be considered in order to accept future vouchers / reimbursements, since there is no requirement for financial support, as is the case in the case of combined travel cancellation vouchers. (notwithstanding the actual effectiveness of this requirement in practice). This, without forgetting that most of the time the agreement is better than a lawsuit, and that, if a friendly agreement is not reached, any lawsuit, once Justice is reactivated, will be slow, expensive, and of uncertain result if it cannot become effective the Judgment that is obtained; And unfortunately - as much as we regret it - many of our companies will not come out of this crisis well.
Contracts for the provision of services of successive tract
Regarding successive contract contracts - whose provision lasts over time - (for example: gym fees, extracurricular activities, etc.), the general rule is that the collection of new fees will be stopped until the service can return to lend normally; however, the contract is not terminated.
If part or all of the quotas have been paid in advance, the provider company can offer the recovery of the service afterwards, unless the consumer or user refuses this solution, in which case the refund of amounts for services not provided during the duration of the impossibility of provision (or the proportional reduction of its amount), without this implying the termination of the contract; notwithstanding that the parties decide otherwise.
Attention: leasing contracts are not for these purposes successive contracts, nor are these measures applicable to them. The measures adopted to protect the housing leases of people in vulnerable situations have a specific and differentiated treatment.
Obviously, these measures will not apply to leases of companies that, in our opinion and without prejudice to specific agreements, or the possible application of a reduction or exemption of income through the application of the clause rebus sic stantibus, they are obliged without changes, to pay the rental income of their business premises.
Combined travel contracts canceled
In the case of combined travel contracts canceled by COVID 19, the organizer or the retailer, where appropriate, may deliver to the consumer or user a voucher to be used within one year from the end of the validity of the alarm status and their extensions, for an amount equal to the refund that would have been due.
After the period of validity of the voucher without having been used, the consumer may request a full refund of any payment made.
Although the norm establishes that the offer of a temporary substitute bond "must have sufficient financial support to guarantee its execution", this does not materialize in a specific requirement (for example, provision of a guarantee or guarantee), so - Unless otherwise specified, its effectiveness in practice is more than doubtful, beyond the eventual personal responsibilities of the administrators, who, for example, in the context of an insolvency situation or bankruptcy proceeding of the retailer or organizer, will be “watered down”. ”, If not directly ineffective.
In any case, the consumer or user may request reimbursement of the sums paid, requesting the termination of the contract for impossibility due to force majeure (as already provided for in article 160 of the TRDCU).
If, in turn, any or all of the service providers - hotels, airlines, etc. - have proceeded to cancel and refund part or all of it, the consumer or user will be entitled to the equivalent refund, which will be discounted the amount of the bonus (or counting from the date in which one of the service providers has returned part of the amount paid).
In any case, refunds must occur within a period not exceeding 60 days from the date of termination of the contract, or from that in which the service providers had returned to the retailer or organizer, in part or in whole.
If in doubt about your case, do not hesitate to contact us and we will advise you.
