The right of revocation allows consumers, after a brief reflection period, to revoke their consent without having to provide a specific reason. This right serves to correct the informational and structural imbalances inherent in the relationship between professionals and consumers. It is one of the main tools in consumer law. The right of revocation aims to protect consumers from hastily concluding a contract due to unexpected circumstances in which the contractual negotiation took place (e.g., during door-to-door sales; Art. 40a et seq. CO).
The right of revocation is relatively imperative in nature. Consumers cannot waive it in advance. However, the revocation period can be extended in their favor.
The right of revocation (Art. 40a to 40e CO) directly protects the consumer. It is a specific protective measure in consumer contract law. At the stage of concluding the contract, it addresses the informational and structural imbalance that exists between consumers and professionals.
The legal right of revocation for consumers is an imperative, formative right that can be exercised within a limited period. This right allows consumers to withdraw their consent to the contract without providing a reason and without assuming responsibility.
In the case of door-to-door sales, the consumer is somewhat surprised by an offer to conclude a contract at a time and in circumstances that do not provide them with sufficient peace and preparation to make an informed decision. The 14-day revocation right from the conclusion of the contract and knowledge of this right helps avoid abusive outcomes in this type of sale (Art. 40e para. 2 CO).
Conditions for applying Articles 40a-40e CO:
The right of revocation exists only for the benefit of the consumer. In other words, the subject of the contract must be for personal or family use, the co-contractor must act within the framework of their professional or commercial activity, and the consideration must exceed CHF 100 (Art. 40a para. 1 CO). Thus, the right of revocation does not apply to contracts between private individuals.
Regarding the subject of the contract, it must concern movable property or services (Art. 40a para. 1 CO). These provisions therefore apply to sales, service, and mandate contracts.
The consumer can revoke their offer or acceptance if they were invited to make a commitment at their workplace, in residential premises or their immediate surroundings; in public transport or on public roads; at a promotional event related to an excursion or a similar occasion; by telephone or similar instant voice telecommunication means (Art. 40b CO). Thus, these provisions do not apply to purchases made in a store, at the business premises in question, or to contracts concluded over the internet.
Exception: The purchaser cannot invoke their right of revocation if they expressly requested the negotiations or if they made their declaration at a market or fair stand (Art. 40c CO). Likewise, when the consideration is less than or equal to CHF 100 (e.g., the sale price or the price of the totality of the services provided) (Art. 40a para. 1 let. b CO).
Obligation of the merchant to inform and commencement of the revocation period: The 14-day revocation period starts once the contract has been concluded and the consumer has been informed of their right of revocation, the form and the time limit for asserting it, and the address of the co-contractor in writing or by any other means allowing proof of the right of revocation by the merchant. The burden of proof for this information lies with the merchant (Art. 40d and 40e para. 2 and 3). This information must be dated and allow identification of the contract. It must be provided to the purchaser in such a way that they are aware of it at the time they propose or accept the contract.
Revocation is not subject to any particular form. The burden of proof that it occurred within the deadlines lies with the purchaser. The revocation period is 14 days and starts running as soon as the purchaser has proposed or accepted the contract and has knowledge of the information provided in Art. 40d CO. The period is respected if the purchaser communicates their notice of revocation to the supplier or mails it on the last day of the period (Art. 40e CO).
Consequences (Art. 40f CO): If the purchaser has revoked the contract, the parties must refund the received performances. If the purchaser has used the item, they owe an appropriate rent to the supplier. The purchaser must reimburse advances and costs incurred by the person who provided a service, in accordance with the provisions governing mandates (Art. 402). The purchaser does not owe any other compensation to the supplier.
Limits of contractual freedom: the imperative rules of the CO: The imperative provisions of the general part of the CO imply the nullity of certain contractual clauses. In particular concerning door-to-door sales: Nullity of a clause excluding the right of revocation of the purchaser or altering the conditions of exercise (Contractual clauses - The proper use of contractual freedom, Sylvain Marchand, 2008).
Consequences of failure to inform: For door-to-door sales or similar contracts: The lack of information from the professional does not affect the validity of the contract; however, it prevents the revocation period from starting (Art. 40e para. 2 let. b CO). The consequences of non-compliance with a formality can take various forms. In the example of Art. 40d CO, the violation of the formality means that the revocation period starts later, once the communication has been made in writing (Art. 40e para. 2 let. b CO).
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