EXTRAORDINARY MEASURES IN THE FIELD OF CONSUMER CONTRACTS

The state of alarm decreed in Spain on 14 March 2020 in order to deal with the health crisis caused by COVID-19 has led to the need for the Government to adopt measures aimed at providing consumers and users with mechanisms to guarantee their rights and protection in this exceptional context.

Royal Decree Law 11/2020 of 31 March, in force since 1 April 2020 (RDL 11/2020, in the following), has adopted the following extraordinary measures for the protection of consumers and users with regard to the different types of contracts concluded:

1. Alternative resolution of contracts of impossible performance (art. 36.1 RDL 11/2020)

In contracts for the sale of goods or provision of services, including those of a successive nature, which are impossible to perform, the consumer is granted a right of termination, exercisable for a period of 14 days. In our opinion (the rule is unspecific on this point) the 14-day period should be counted from the moment the fulfilment became impossible.

The exercise of the right of termination can only be considered when a balanced solution cannot be obtained from among the proposals offered by each of the parties that would restore the reciprocity of interests. The consumer does not necessarily have to propose an alternative but must certainly participate in the negotiation.

Therefore, exercising the right, expressing interest in the resolution must be understood as a step prior to negotiations. In the negotiations themselves, an attempt should be made to reach an agreement to fulfil the contract in an alternative way.

If, after 60 days from the impossible execution of the contract, it has not been possible to obtain a proposal for revision (the negotiations are not completed), it will be understood that this is not possible.

2. Obligation to return the sums paid by the consumer (art. 36.2 RDL 11/2020)

If fulfilment of the contract becomes impossible, the entrepreneur shall be obliged to return the sums paid by the consumer, except for expenses incurred, duly itemized and provided to the consumer within a maximum period of 14 days.

3. Ex post recovery options in successive contracts (art. 36.3 RDL 11/2020)

If we are dealing with a successive contract (a contract in which the performance of the service takes place repeatedly and over a long period of time), the entrepreneur can offer options so that the service can be recovered after the exceptional situation has been overcome.

If the consumer does not accept the recovery, the amounts paid for the services not enjoyed will be refunded or may be offset against future fees due.

The service provider shall abstain from making further monthly payments until the service can be provided normally, without this leading to the termination of the contract, unless otherwise agreed by the parties.

Entering into the relationship between art. 36.1 and art. 36.3 of RDL 11/2020, we understand that there is room for resolution in cases where the service cannot be provided during the term of the contract after the crisis has been overcome and there is room for the suspension when it can be maintained, operating the principle of conservation of contracts.

4. Combined trips: voucher or refund (art. 36.4 RDL 11/2020)

In the case of combined trips, the organizer or, where appropriate, the retailer may give the consumer or user a voucher to be used within one year from the end of the state of alarm and its extensions, for an amount equal to the refund that would have corresponded.

Once the period of validity of the voucher has expired without having been used, the consumer may request a full refund of any payment made.

Without prejudice to the above, in case the consumer requests the termination of the contract, the organizer must make the reimbursement provided that the suppliers have made the full refund of the amounts corresponding to their services to the organizer.

If the suppliers have partially reimbursed the organizer, the consumer is entitled to a partial refund, with the amounts partially paid being deducted from the voucher issued for the termination of the contract.

The organizer has a period of 60 days from the date of termination of the contract or from the date on which the suppliers have reimbursed the amounts to reimburse the consumer.

If you have any questions, please contact us:

Contact person
Unai Mieza
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