You concluded a new cellphone agreement over the phone – and regret it immediately? Can your 12-year-old daughter buy a bike without your consent? And what is the legal situation for agreements concluded on the Internet? Find out in our blog in which cases you can withdraw from a purchase agreement – and when you have to pay.
I couldn’t make it to my massage appointment because my meeting in the office went on longer than expected. Do I need to pay for the appointment?
When you make a massage appointment, you have concluded a valid agreement. If you can’t make it or cancel it at the last minute, then the service provider incurs economic damage. They have blocked time for you and could have taken on other customers during this time. However, an obligation to pay applies only if no other customer could be found and no other paid work could be done. In this case, the massage studio has the burden of proof.
In such instances, it is worth trying to talk with the service provider to find an amicable solution. If they won’t discuss the issue with you and the appointment could not be reallocated, then you have to pay.
My gym membership is automatically extended by one year if I don’t cancel it three months beforehand in writing. Is that legal?
Yes, so-called prolongation clauses in contracts are generally permitted. If they are only listed in the General Terms and Conditions (GTC), then the gym must hand you the GTC before you conclude the contract and explicitly inform you of the automatic extension in the actual agreement. If this has been done, then the clause is legally valid.
In such cases, it makes sense to note the termination date in your calendar so that you don’t miss the deadline if you need to terminate.
I orally agreed with my neighbor to buy their children’s bike for CHF 100. However, my daughter doesn’t like the color. Can my neighbor insist on the oral agreement?
Yes, your neighbor can insist on fulfillment of the agreement. Agreements do not have to be concluded in writing for them to be legally valid. Generally, contracts are concluded form-free (orally) unless the law stipulates a special form for certain types of contracts (such as the purchase of property).
If, as in your case, the parties agree to all the material points (such as the item to be purchased and the price), then a contract is concluded.
However, for reasons of proof, it is wise to conclude the agreement in writing.
I let myself get talked over the phone into a case of Rioja for CHF 99. Do I have to pay this? I didn’t sign any contract.
Yes, here too, a contract has been concluded and you are obligated to pay.
This is so-called door-to-door sales, i.e. in which you were surprised by a salesperson with an offer. In such legal transactions, there is a right of withdrawal of 14 days. However, the contractual benefit must exceed CHF 100. Since you concluded a contract for CHF 99, you cannot take advantage of this right. The situation would be different if the wine had cost CHF 101. Under this scenario, you would have the option of withdrawing from the contract in writing within 14 days.
Important: Oral agreements are also legally valid and binding.
What is the legal situation for agreements concluded on the Internet?
For purchase agreements concluded online, the same requirements as those applied to contracts concluded offline generally apply. This means that if the parties have reached a mutual agreement regarding the material points, the contract is legally valid.
Regarding the price, however, there is a difference to standard contracts. In legal terms, an offer on the Internet is not deemed to be a binding offer. Instead, it is only an invitation to the customer to submit a purchase offer by filling out and submitting an online order form. However, the provider is subsequently entitled to change the price after the order has been submitted.
Can minors conclude a purchase agreement?
Minors have only a restricted capacity to act: able to exercise sound judgment, but are underage. They can only conclude a contract if their parents grant their consent to the conclusion of a legal transaction in advance or afterward.
One exception to this rule is the purchase of items in the amount of a child’s allowance, for example a pack of gum or a book. In such cases, minors can conclude legally valid agreements without consent.
Is there a general/legal right of withdrawal in a purchase agreement?
No, a general right of withdrawal is not set out in law. Instead, the legal principle “pacta sunt servanda” applies, i.e. contracts must be preserved and kept. One exception is the example of the right of withdrawal in the case of door-to-door sales, which is only applied in a very small number of legal transactions. For this reason, you should consider carefully whether you want to sign a purchase agreement, especially if it is for an expensive purchase.
However, in practice, and especially in the area of consumer goods, a contractually provided right of withdrawal is becoming increasingly common. For example, a “money-back guarantee” if you are not satisfied. However, this right of withdrawal only applies under the conditions that the other contractual party set out in the contract.
If a right of withdrawal is important for the conclusion of the contract, then you should obtain information in advance or consult the agreement and the GTC.
Which contracts can I withdraw from?
Contracts that include a contractual right of withdrawal and door-to-door sales can be rescinded. Door-to-door sales are considered to be legal transactions in which you were surprised or blindsided by a salesperson with an offer. This can be over the phone, at your front door, or in a public space.
To ensure that the provisions regarding door-to-door sales apply, the following conditions must be met:
My mother felt pressured into buying a dishware set on a promotional trip. Can she give it back?
Yes, based on the provisions regarding door-to-door sales, your mother can withdraw from the contract. The trip is considered to be a promotional event connected with a trip.
However, the right of withdrawal must be exercised within 14 days.
The Swiss Code of Obligations (SCO) allows customers of so-called door-to-door sales to withdraw from contracts within two weeks. This two-week deadline applies if the contract was concluded ...
... and it relates to a contract for more than CHF 100.
The right of withdrawal does not apply:
Providers or sellers must actively inform customers of their right of withdrawal – namely in writing or in another form that allows for proof in text (email, text message, etc.). Withdrawal from a contract does not have to take place in a specific form, in other words it can be done over the phone. However, the customer must be able to prove that they withdrew by the deadline. For this reason, we advise submitting the withdrawal in writing with the date (e.g. by letter or email).
In what form do I have to withdraw from door-to-door sales?
The law does not stipulate a certain form for withdrawal. For reasons of proof, however, we recommend withdrawing from the agreement in writing and by registered mail.
The deadline is 14 days after the conclusion of the contract and the provisions regarding with withdrawal have been notified to the customer. The 14-day period does not start until the seller has explicitly informed the customer of the provisions on withdrawal. In such cases, the contract can be withdrawn from even weeks later.
I concluded a subscription contract over the phone. Can I withdraw from this contract?
Yes, provided the conditions of door-to-door sales are met, such a subscription contract can also be withdrawn from.
The calculation of the benefit amount for such relationships of continuing obligation is based on the potential cumulative costs during the minimum contract duration or until the first possible date of termination. If this amount is over CHF 100, then the provisions regarding door-to-door sales apply.
You can get additional information from Swiss Consumer Protection.