Black Friday has passed. It’s now Christmas, and the sales follow. It’s a time of high consumption, and there are two distinct realities between the parties involved: the consumer wants to spend little, and the trader wants to make a lot of money.
One of the things that make buying and selling more accessible are the so-called Marketplaces, in the light of Decree-Law 84/2021, which regulates consumer rights when buying and selling digital goods, content and services, transposing Directives (EU) 2019/771 and (EU) 2019/770.
Who has yet to enter an online or even physical shop and realised or been approached about the possibility of purchasing products not sold directly by the trader they initially thought they were doing business with but by a third party?
This is an increasingly common reality in Portugal, where several leading national retailers take advantage of the credit, they have acquired from consumers to sell to other not-so-well-known retailers, often from outside our market and with a different range of products. It’s a win-win deal for the consumer and the retailer, which, like everything else, has pros and cons. Let’s look:
- You see a more comprehensive range of products, many of which you can’t even find at the retailer you went to or on the national market;
- Different prices are offered, often lower than the retailer’s price (if they also have the product) or the national reference value;
- Extra security is given by having an intermediary operating in the business.
- The waiting time after purchasing the product is often longer, not least because the third party mainly operates outside the national territory, and the delivery methods are disparate;
- The bureaucracy is inherent in having an intermediary.
- Attracting more customers who initially wouldn’t buy that type of product there, or even keeping current customers who, despite not finding the product they usually buy with the merchant, get it through a third party;
- Internal business, of course, between the trader and multiple third parties;
- Diversification of commercial operations.
- The possible lousy publicity that a third party may give the trader due to failure to supply or the poor quality of the products, or even another reason outside the business itself;
- Overwhelming growth in the capacity for compliance and management of diverse commercial realities, as well as the numerous relationships defined with third parties of all origins.
Looking at Decree-Law 84/2021 and interpreting Articles 2 and 3, we realise that only commercial relationships between the consumer and a professional trader are taken into account here, which excludes all examples in which the purchase of digital goods, content and services is made with a non-professional party. After this framework, we come to online marketplace providers, professional traders who provide an electronic means of concluding distance contracts with other professional third parties, creating what is then known as Marketplaces.
What is fundamental to the success of these operations? What prevails in Consumer Law is the duty of information emphasised in Article 45. Therefore, the professional trader, an online marketplace provider, must inform the consumer that they are entering into a contract with a third party, indicating their identity, professional capacity, and contact details. Nonetheless, paragraph 1(c) of this article emphasises a critical point for anyone using this trading mechanism: not all third parties in the Marketplace have to be professionals, meaning the rights provided for in the law do not apply.
We went back to Article 44, where we realised that the professional trader who is a provider, as a contractual partner of the professional third parties operating in their online Marketplace, is always jointly and severally liable to the consumer for anything the latter markets. The professional trader does, however, enjoy a right of recourse against third parties, as provided for in Article 46. All of this, of course, never dispenses with the direct liability of the producer of the digital goods, content and services that have been purchased, as provided for in Article 40.
There is more to complete in the universe of legal solutions in our legal system. Still, alongside Decree-Law no. 84/2021, which we have covered so far, it is also essential to look at Decree-Law no. 24/2014, given that it focuses on contracts concluded at a distance – mainly in terms of what they should contain – which is the central topic of this issue we are dealing with, and which has as one of its bulwarks the right of free cancellation – articles 10 et seq – often also referred to as the “right to regret”.
Let’s put an example into practice: A, a consumer, consults the online shop of B, a professional trader, requesting information in the customer service corner about a particular product he has viewed. B explains that the product is sold by C, a professional third party and that it is necessary to sign a distance purchase contract explaining its applied conditions. A then asks how she can exercise the three-year guarantee or even what she can do if she regrets it since she is not physically viewing the product. B replies that A can permanently, firstly, freely terminate the contract within 14 days of receiving the product. Secondly, if that is not his intention and he wants to keep it, in any situation relating to the guarantee, he can always exercise it for three years with you or even with C, or even go directly to D, the producer of the product purchased.
It is, therefore, possible to understand that a web is created to guarantee and supply the various products in question, giving security to commercial traffic from the weakest party, which is the consumer – who has a lack of information and where its asymmetry, in an increasingly diverse, competitive and specialised market, makes choice more difficult – to the most preponderant party which is the trader – who has a greater technical mastery of the products, a more robust financial resource capacity and also a superior human organisation, better able to solve the problems at hand.
The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.