Division 3
Off-premises Contract
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 46. Definition of off-premises contract
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(1) An off-premises contract is a contract with is entered into:
1) when the trader and the consumer are simultaneously present in a place which is not the business premises of the trader;
2) on the business premises of the trader or by means of distance communication immediately after the trader has personally and individually addressed the consumer in the simultaneous presence of the consumer and the trader in a place which is not the premises of the trader, or
3) during an excursion arranged by the trader with the aim of promoting and selling movables or offering services or other performance to the consumer.
(2) An off-premises contract is also deemed to be the contract for the entry into which the consumer has made an offer under the circumstances specified in clause (1) 1) of this section.
(3) For the purposes of subsection (1) of this section, business premises include the buildings on an immovable used both for the sale, provision of services as well as other performance where the trader carries out the activities on a permanent basis, and an immovable or other space used both for sale, provision of services or other performance where the trader carries out the activities on a usual basis.
(4) The business premises of a person acting in the name or on behalf of a trader shall be considered as business premises of the trader.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 47. Application of provisions
(1) The provisions of this Divisions shall not apply to a contract in the case of which the payment made by a consumer for the object of contract does not exceed 20 euros.
(2) The provisions of this Division do not also apply to contracts which are entered into:
1) for provision of social services;
2) for provision of health services;
3) for participation in gambling;
4) for provision of transport services for passengers;
5) for transfer or encumbering of an immovable or disposal of real rights relating to an immovable;
6) for construction of new buildings or substantial conversion of buildings;
7) for lease of dwellings;
8) by means of notarial authentication;
9) with regard to foodstuffs, beverages or other goods intended for everyday consumption which are delivered during frequent and regular tours of a trader to the residence, seat or workplace of the consumer;
10) by means of automatic vending machines or automated commercial premises;
11) with a provider of electronic communications services by means of a public telephone for the use thereof or for the use of one single connection by telephone, Internet or fax established by a consumer.
(3) The right of withdrawal provided for in subsection 49 (1) of this Act shall not apply to contracts:
1) the object of which is the provision of a service or other continuous performance, if the contractual obligations of the trader are fully met and the provision of the service or other performance has begun with the consumer’s express prior consent and acknowledgement that the consumer will lose the right to withdraw upon performance of the contract by the trader;
2) the object of which is the delivery of such goods, provision of services or other performance which price is dependent of fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period;
3) the object of which is the delivery of goods made to the consumer’s specifications or clearly personalised;
4) the object of which is the delivery of the goods which deteriorate or expire rapidly;
5) the object of which is the delivery of such goods in sealed packaging which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
6) the object of which is the delivery of such goods which are, after delivery, according to their nature, inseparably mixed with other items;
7) the object of which is the delivery of such alcoholic beverages, the price of which has been agreed upon at the time of the entry into the contract of sale, the delivery of which takes place after more than 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;
8) the object of which is the carrying out of urgent repairs or maintenance where the consumer has requested a visit from the trader for such purpose;
9) the object of which is the delivery of sealed audio or video recordings or computer software if the consumer has opened the package;
10) the object of which is the delivery of newspapers, magazines or periodicals with the exception of subscription contracts for an indefinite period entered into for subscription for such publications;
11) which are entered into at auctions where the consumer is present or the consumer has been granted an opportunity to be present;
12) the object of which is provision of accommodation services, transportation of movables, use of motor vehicles, catering or services related to leisure activities if the trader undertakes to provide the services by a specific date or during a certain term upon conclusion of the above specified contract;
13) the object of which is the delivery of such digital content which is not delivered on a tangible medium if the delivery thereof has begun with the consumer’s prior express consent and the consumer’s acknowledgement that the consumer thereby loses the right of withdrawal.
(4) The exception provided for in clause (3) 8) of this section shall not extent to the contract which is entered into on the occasion of such visit in addition to those ordered by the consumer, inter alia to a contract by which goods are delivered other than replacement parts necessary for carrying out the maintenance or making the repairs.
(5) If an off-premises contract also conforms to the provisions concerning contracts entered into between other consumers and the trader, the provisions of this Division apply together with the specifications provided for such other types of contract.
(6) If an off-premises contract is entered into in Estonia with a consumer whose residence is in Estonia or in another member state of the European Union, the provisions of this Division apply regardless of which state’s law applies to the contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 48. Precontractual information to consumer
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(1) Prior to entry into a contract or making a binding offer by a consumer for this purpose, a trader shall provide the consumer with the following information in a clear and comprehensible manner:
1) data which enable the identification of the trader, in particular the trader’s business name;
2) the address of the registered office of the trader and, where available, the trader’s telephone number, fax number and e-mail address and, where relevant, the address of the registered office and identity of the trader on whose behalf the trader is acting;
3) the address of the place of business of the trader where the consumer can address complaints, if different from the address specified in accordance with clause 2) of this subsection;
4) the main characteristics of the object of contract to the extent appropriate to the object of contract and the manner of presentation of information;
5) in the case of digital content, the method of use thereof, the technical protective measures applied to it and compatibility thereof with any hardware and software of which the trader is aware or should be aware;
6) the total price of the object of contract inclusive of taxes, or where the nature of the object of the contract is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, and all additional freight, postal, delivery or any other costs, if the consumer has to cover these costs or where those costs cannot reasonably be calculated in advance, information on that such additional costs may be payable;
7) the charge for use of the means of distance communication used for entry into the contract, except in the case such charge corresponds to the normal charge for the use of such means of distance communication;
8) when a consumer has to pay a sum of money as security or provide other financial security, the fact that this has to be done at the request of the trader, and the terms and conditions of such security;
9) the arrangements for payment, delivery and execution of an order and the time by which the goods are delivered, the service is provided or other acts are performed;
10) the minimum duration of the consumer’s obligations under the contract, if it exists;
11) in the case of long-term contracts the duration of the contract, or if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
12) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with subsection 49 (21) of this Act;
13) where a right of withdrawal exists, a standard form of application for withdrawal;
14) the fact that if the consumer withdraws from the contract, the consumer shall bear the costs of returning the goods that constituted the object of the contract, if the consumer bears these costs;
15) the fact that if the consumer exercises the right to withdraw from the contract after submitting the application specified in subsection 481 (2) of this Act, the consumer is obliged to compensate the trader for reasonable costs according to subsection 493 (4) of this Act;
16) where a right of withdrawal is not prescribed according to subsection 47 (3) of this Act, the information that the consumer has no right of withdrawal or, if the consumer may lose the right of withdrawal, information about the circumstances under which the right of withdrawal will be lost;
17) upon offer of the maintenance service of the object of contract or customer service after the performance of the contract, the existence and the terms and conditions thereof;
18) a reminder that the consumer can rely, upon non-compliance of the object of contract with the terms and conditions of the contract, on the legal remedies provided by law;
19) upon grant of additional warranty in addition to the legal remedies provided by law, the existence and terms and conditions thereof;
20) the existence of a code of conduct observed by the trader, if the activities of the trader are based on it, and information on how to obtain a copy thereof;
21) the procedure for handling complaints implemented by the trader, if it exists;
22) the information on the possibilities of the consumer to have recourse to a body settling extra-judicial complaints and disputes and the terms and conditions of recourse.
(2) The information specified in subsection (1) of this section shall be presented to a consumer on paper, or, if the consumer agrees, on another durable medium. That information shall be legible and in plain and intelligible language.
(3) The information specified in clauses (1) 12), 14) and 15) of this section may be also provided to the consumer in the model instructions on withdrawal. If the trader provides the consumer with the model instructions on withdrawal, that information shall be deemed submitted to the consumer. That information is deemed submitted to the consumer only in the case the trader has properly completed the model instructions on withdrawal from the contract.
(4) The model instructions on withdrawal from contract shall be established by a regulation of the minister responsible for the area.
(5) Where the consumer has explicitly requested the services of the trader for the purpose of carrying out repairs or maintenance for which the trader and the consumer immediately perform their contractual obligations and where the payment to be made by the consumer does not exceed 200 euros, the trader shall provide the consumer only with the information provided for in clauses (1) 1), 2), 4), 12), 13) and 16) of this section and the information about the price or the manner in which the price is to be calculated together with an estimate of the total price. Where the consumer has explicitly granted a consent, the trader may provide the consumer with the information specified in clauses (1) 4), 12), 13) and 16) of this section in another manner than that provided for in the first sentence of subsection (2) of this section.
(6) In the case of the contract specified in clause 47 (3) 11) of this Act, the trader may replace the information specified in clauses (1) 1) to 3) of this section by the respective details for the auctioneer.
(7) In the case of a contract of indeterminate duration or a long-term contract the objects of which are continuing or recurring orders, the total price specified in clause (1) 6) of this section shall include the total costs per settlement period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be calculated in advance by reasonable efforts, the manner in which the price is to be calculated shall be provided.
(8) If the trader failed to inform the consumer of the obligation to pay the costs specified in clauses (1) 6) or 14) of this section, the consumer shall not bear these costs.
(9) The provisions on the obligation to provide precontractual information specified in subsection 14 (2) and § 141 of this Act shall not apply to preparations for entry into an off-premises contract.
(10) The trader shall prove compliance with the obligation to provide precontractual information provided for in this section.
(11) The information provided as precontractual information shall form a part of the contract, unless the parties have expressly agreed otherwise.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 481. Confirmation of information
(1) The trader shall provide the consumer with a copy of the signed contract or the confirmation of the contract on paper or, if the consumer agrees, on another durable medium, including, where the digital content is the object of the contract, even the trader’s confirmation that the consumer has granted a prior express consent and acknowledgement in accordance with clause 47 (3) 13) of this Act for commencement of delivery of the digital content.
(2) Where the consumer wants the provision of services, other continuous performance or sale of water, gas, electricity or heating through a network to begin during the withdrawal period prescribed in § 49 of this Act, the trader shall require that the consumer makes such an express request on a durable medium.
(3) Where the consumer has explicitly requested from the trader the entry into such a contract the object of which is the carrying out of repairs or maintenance works, the trader and the consumer immediately perform their contractual obligations and the payment to be made by the consumer does not exceed 200 euros, the confirmation given pursuant to subsection (1) of this section shall contain the information provided for in subsection 48 (1) of this Act.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 49. Right of withdrawal
(1) The consumer shall have a period of 14 days to withdraw from an off-premises contract without giving any reason.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(11) In the case of a contract the object of which is the delivery of goods, the period specified in subsection (1) of this section shall commence as of the day when the consumer or a third person other than the carrier and indicated by the consumer acquires physical possession of the goods, or:
1) where several goods that are delivered separately have to be delivered to the consumer pursuant to the contract, as of the day when the consumer or a third person other than the carrier and indicated by the consumer acquires physical possession of the goods;
2) where the goods have to be delivered to the consumer in multiple lots or pieces, as of the day when the consumer or a third person other than the carrier and indicated by the consumer acquires the physical possession of the last lot or piece;
3) in the case of a long-term contract the object of which is repeated delivery of goods during defined period of time, as of the day when the consumer or a third person who is not a carrier and indicated by the consumer acquires physical possession of the first goods delivered.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(12) In the case of a contract the object of which is the provision of a service or other continuous performance, the period indicated in subsection (1) of this section shall commence as of the day of entry into the contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(13) In the case of sale of water, gas, electricity or heating through a network and in the case of digital content which cannot be delivered on a tangible medium, the period specified in subsection (1) of this section shall commence as of the day of entry into the contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(14) If the trader has violated the obligation to provide information specified in clause 48 (1) 12) of this Act, the withdrawal period shall expire 12 months after the expiry of the withdrawal period determined in the manner provided for in subsections (11) to (13) of this section. If the trader delayed the provision of the information on the right of withdrawal specified in the preceding sentence to the consumer but still provided it within 12 months as of the day referred to in subsections (11) to (13) of this section, the withdrawal period shall expire 14 days after the receipt of the information.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(2) The deadline for withdrawal from an off-premises contract shall be deemed to have been observed by the consumer if the consumer has dispatched a notification concerning the withdrawal to the trader during the withdrawal period.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(21) The consumer may withdraw from a contract by means of a standard form of application for withdrawal or by presenting another unequivocal application for withdrawal.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(22) The standard from of application for withdrawal shall be established by a regulation of the minister responsible for the area.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(23) If the consumer uses the website of the trader for sending the application for withdrawal, the trader shall immediately send a confirmation to the consumer on a durable medium concerning the receipt of the application for withdrawal.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(3) [Repealed – RT I 2003, 78, 523 – entry into force 27.12.2003]
(4) [Repealed – RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(5) The provisions of this section shall not apply if the off-premises contract is a consumer credit contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(6) The consumer shall prove withdrawal from the contract in compliance with the provisions of this section.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 491. Withdrawal from consumer credit contract
[Repealed – RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 492. Trader’s obligations upon consumer’s withdrawal
(1) Upon receipt of an application for withdrawal, the trader shall return to the consumer immediately but at the latest after 14 days all the payments received from the consumer based on the contract, inter alia the costs of delivery of the goods borne by the consumer.
(2) If the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader, the trader shall not be required to reimburse the consumer for the costs which exceed the costs relating to the type of standard delivery.
(3) The trader shall carry out the reimbursements specified in subsection (1) of this section using the same means of payment as was used by the consumer for making the payments, unless the consumer has expressly agreed on the use of other means of payment and provided that the consumer does not incur any service charges or other costs as a result of such reimbursement.
(4) If the object of contract is the delivery of goods, the trader may refuse to make the reimbursement specified in subsection (1) of this section on the basis of § 111 of this Act until the consumer has returned the goods constituting the object of contract to the trader or until the consumer has supplied evidence of having sent the goods back. The trader shall not have the right specified in this section in the case the trader has agreed to collect the goods constituting the object of contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 493. Consumer’s obligations upon withdrawal
(1) If goods were delivered to the consumer as an object of the contract, the consumer shall return the goods to the trader immediately but at the latest after 14 days as of making an application for withdrawal or deliver the goods to the trader or a person indicated by the trader. The consumer shall not have the obligation to return the goods specified in the first sentence of this subsection in the case the trader has agreed to collect the goods. The consumer shall be deemed to have performed the obligation to return the goods in due time if the consumer returns the goods constituting the object of contract during the period specified in the first sentence of this subsection.
(2) The consumer shall bear the direct costs relating to the return of the goods delivered to the consumer as the object of contract, unless the parties have agreed otherwise. The consumer shall have no obligation to bear the costs if the trader has failed to inform the consumer of the fact that the consumer has to bear these costs. Where goods have been delivered to the consumer’s home at the time of entry into the contract and, by its nature, the goods cannot be normally returned by post, the trader shall collect the goods at the trader’s expense.
(3) In the case of any deterioration of the goods subject to return, the consumer is liable for the diminished value of the goods only in the case the consumer used the goods in a manner other than what is necessary to establish the nature, characteristics and functioning of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and use the goods in the same manner as the consumer would customarily be allowed to do in a shop. The consumer shall not be liable for the diminished value of the goods in the case the trader has failed to draw the attention of the consumer to the existence of the right of withdrawal according to clauses 48 (1) 12) and 13) of this Act.
(4) If the consumer exercises the right of withdrawal after submission of the application specified in subsection 481 (2) of this Act, the consumer shall reimburse the trader for the value of what was delivered as the performance of the contract in proportion to what was delivered up to the time when the consumer withdrew from the contract, taking into consideration the total volume of the contract. The value of what was delivered is determined on the basis of the price agreed in the contract. If the contract price is unreasonably high, the value of what was delivered shall be calculated on the basis of the market value.
(5) In the case of a contract the object of which is the provision of a service, other continuous performance or sale of water, gas, electricity or heating through a network, the consumer is not obliged to reimburse the trader for the value of what was delivered during the withdrawal period if:
1) the trader has failed to provide information to the consumer according to clauses 48 (1) 12), 13) or 15) of this Act; or
2) the consumer has not expressly applied for the commencement of the provision of a service, other continuous performance or sale of water, gas, electricity of heating through a network pursuant to subsection 481 (2) of this Act during the withdrawal period.
(6) In the case of the contract the object of which is the delivery of digital content, the consumer is not obliged to reimburse the trader for the value of such digital content delivered to the consumer during the withdrawal period which was not delivered on a tangible medium if:
1) the consumer has not given a prior express consent for the commencement of the delivery of the digital content before the end of the 14-day period provided for in subsection 49 (1) of this Act;
2) the consumer has not acknowledged that the consumer loses the right of withdrawal when giving such consent; or
3) the trader has failed to provide confirmation specified in subsection 481 (1) of this Act.
(7) The claims of the trader arising from withdrawal against the consumer are limited to that provided in this section and subsection 492 (2).
(8) Contract terms which impede the right of withdrawal from being exercised, in particular agreements pursuant to which withdrawal is bound to payment of earnest money or a contractual penalty, are void.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 494. Effect of withdrawal to collateral contract
(1) If the consumer exercises the right of withdrawal provided for in § 49 of this Act with respect to an off-premises contract, the consumer shall be deemed to have withdrawn from the collateral contract linked to the off-premises contract which the consumer has entered into with the trader or a third person on the basis of an agreement between the third person and the trader.
(2) If the consumer is deemed to have withdrawn from a collateral contract in the case specified in subsection (1) of this section, the trader or the third person may not require payment for other costs besides those provided for in subsection 492 (2) and § 493 of this Act.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 495. Effect of withdrawal on consumer credit contract
(1) If an off-premises contract is a contract economically linked to a consumer credit contract for the purposes of § 414 of this Act, a consumer is deemed to have also withdrawn, in the case of withdrawal from an off-premises contract under the conditions provided for in § 49 of this Act, from the consumer credit contract and collateral contracts linked thereto for the purposes of subsection 409 (32) of this Act.
(2) In the case specified in subsection (1) of this section, a consumer shall not be required to pay interest or other expenses in the case of withdrawal from a consumer credit contract. The provisions of §§ 188-192 of this Act apply to other consequences of withdrawal.
(3) If credit is provided by a third party and the amount of the credit has already been paid to the trader, the rights and obligations of the trader with regard to the consumer transfer to the creditor in the case of withdrawal by the consumer.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 50. Prohibition on violation of provisions
A person or body provided by law may, pursuant to the procedure provided by law, require a trader who has violated the provisions of this Division to terminate such violation and refrain from future violations.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 51. Mandatory nature of provisions
Agreements which derogate from the provisions of this Division to the detriment of the consumer are void.