New consumer rights for the self-employed

By Pawel Lipski

10-2020

Statistics estimate that over three million people in Poland are self-employed. As of 1 January 2021, self-employed persons will be granted certain rights which are currently enjoyed solely by consumers.

Who do the changes refer to?

The changes refer to all entities who sell goods or provide services to self-employed persons.

When can self-employed persons exercise their consumer rights?

Self-employed persons may exercise their new rights with respect to agreements directly related to their businesses, if the wording of such agreements shows that they do not have professional character for them. This follows in particular from the statistical classification of business activity (PKD). To determine whether a self-employed person has, in particular circumstances, consumer rights, it is necessary to verify the professional nature of the agreement, especially on the basis of information recorded in the Central Registration and Information on Business (CEIDG). As a side note, from this perspective, the narrower the scope of business specified in the CEIDG, the greater the chance for more advantageous treatment of a self-employed person.

What will change?

As a result of the amended law, provisions which to date have been reserved for consumers, i.e., provisions on:

  • abusive clauses
  • consumer rights under warranty (with restrictions)
  • right of withdrawal from distance / off-premises contract (with exceptions)

will apply to self-employed persons.

Abusive clauses are defined as contractual provisions not agreed individually (usually in the form of rules and regulations or general terms and conditions) which shape the rights and obligations of consumers in the manner contrary to good practices, grossly breaching consumer interests. If an agreement contains abusive clauses, such clauses are not binding upon the consumer.

Over many years the courts and the Office of Competition and Consumer Protection (UOKiK) have found thousands of clauses to be abusive. The clause which provides that the court competent to resolve a dispute between the parties, is the court competent as to the registered office of the seller, is just one of many examples of such clauses.

As regards warranty, the amendment introduces, i.a., a presumption of acceptance of a warranty, if the seller does not respond to the submitted complaint within 14 days of request by the self-employed person to change / repair an item, or provide a statement on price reduction, as well as presumption of existence of a physical defect at the time when an item is delivered, if the defect is detected within one year of the delivery. Self-employed persons will be able to rely on the properties of such item specified not only by the seller, but also for instance in an advertisement of the producer.

Importantly to trade practice, under the amended law it will be possible to contractually restrict or exclude the seller’s liability for the warranty. This option, however, should be used with caution.

In addition, the legislator has granted self-employed persons the right to withdraw from a distance contract or off-premises contract within 14 days of delivery of goods or conclusion of the agreement (for provision of services).

What will be the effects of the amended law?

Self-employed persons more often than not conduct large-scale businesses and have greater legal awareness than consumers. They are probably also more likely exercise their rights.

Sellers need to prepare themselves for a greater number of buyers who enjoy the consumer status, which means more complaints and rescissions of distance contracts.

How to prepare for the upcoming changes?

Sellers need to analyse their general terms and conditions / rules and regulations, and eliminate abusive clauses.

Sellers should modify the processes of considering complaints from self-employed persons and take their new rights into account.

Those contracting with self-employed persons outside business premises or remotely should inform self-employed persons of their right to withdraw from contracts.