4 legal concerns when selling directly to consumers through a web shop

"Back to the roots. This is the trend that has been continuing for some time now with regard to direct sales to consumers. The increasing competition from private labels and margin squeeze makes this step attractive for many business owners . More and more companies are therefore converting their existing business-to-business (B2B) trade into direct sales to consumers (B2C). After all, you already have the platform, as well as the web shop. Sounds good, but should you make this move be aware that different rules apply in a B2C relationship than in a B2B relationship. This blog outlines some of these different rules.

1. The duties of information

For contracts concluded outside the sales area, or via a website or the telephone, the buyer cannot see or try out the product. Therefore, to protect the buyer, additional information requirements apply. In both B2B and B2C contracts, information relating to the identity and address of the seller, contact details, Chamber of Commerce number and the manner in which the contract is concluded must be provided to the buyer, among other things.

Thereby, with respect to B2C contracts, additional information duties specifically apply. A list of these duties can be found in Section 6:230m of the Dutch Civil Code. For example, the seller must provide information about the main characteristics of the item (color, price including VAT, size, etc.). But also information about the ordering process, method of payment, delivery/delivery time and performance of the agreement. In addition, the seller must inform the buyer whether or not the right of withdrawal applies. The right of withdrawal will be discussed in more detail later in this blog.

Clear and understandable

The information mentioned in Article 6:230m of the Dutch Civil Code must be provided to consumers in a clear and understandable way. Therefore, make all essential information on your website quickly and easily accessible. With regard to information that can be regarded as essential for the consumer's decision-making process, the mere reference to the general terms and conditions is not sufficient. All information should be confirmed again on a "durable data carrier" after the conclusion of the contract, so that the consumer can store the information. This can be done, for example, on paper or by e-mail.

Penalty model for violation of information duties

The court tests ex officio, or on its own initiative, whether the information duties have been violated by the seller. Following a decision of the Supreme Court, the courts have established a penalty model with respect to the violation of information duties. In the situation where one of your buyer fails to pay and your company starts proceedings for it, a breach of information duties on your side can cause the principal sum claimed by you to be reduced by up to 50%. In addition, failure to provide essential information correctly or completely can be seen as an unfair trade practice, under which the contract in question can be voided for consumer protection.

2. General conditions

The black & gray list

In addition, general terms and conditions that apply between businesses are not subject to the strict rules that do apply in relation to consumers. For example, the Civil Code contains a gray and black list. Terms mentioned on the gray list are presumed to be unreasonably onerous, but counter-evidence from the user is possible. When a clause is mentioned on the black list, it is thereby established that the clause is unreasonably onerous.

If the court finds that a clause is unreasonably onerous, the clause can be nullified. The grey and black list evidentiary presumptions do not apply to B2B general terms and conditions. For example, a clause that excludes all or part of the user's liability (according to the gray list) is presumed to be unreasonably onerous with respect to consumers. When it comes to a business-to-business contract, the exclusion of liability is, in principle, allowed. Unless the damage was caused by intentional or deliberate recklessness.

Reflex action

Thus, the law does not provide businesses with the same protection that a consumer does. Exceptions aside. Indeed, in some cases, small businesses, in addition to consumers, are protected by the lists through the reflex effect. These are only parties who may find themselves in the same position as a consumer. Reflex effect therefore hardly occurs with large counterparties. They are generally better able to defend themselves against general terms and conditions, partly because of their stronger negotiating position.

In case your clientele shifts from companies to consumers, it is certainly advisable to check whether your general terms and conditions are consumer-proof. Given the above, there are substantial differences between the enforceability of clauses in relation to businesses and those in relation to consumers. If your general terms and conditions are not in order, they can be annulled.

3. The right of withdrawal

Another important difference between B2B and B2C sales is the right of withdrawal. This is because, in principle, a consumer can dissolve an agreement within 14 days, without giving reasons. However, there are exceptions possible. For example, products that are custom-made especially for the consumer in question, perishable goods or items that cannot be returned for reasons of health protection or hygiene. Please check whether your products fall under an exception to the right of withdrawal. Whatever the outcome, as a trader you remain obliged to inform the consumer of the existence or non-existence of the right of withdrawal.

If you as business owner do not comply with this information obligation, the consumer is given a continuous withdrawal period. This period only expires after 14 days that you as a seller do comply with the information obligation, until no later than 12 months after delivery. In case there is no exception, the right of withdrawal is mandatory in relation to consumers. Business customers, on the other hand, have no legal right of withdrawal.

4. Compelling law

Finally, it is important to note that the law is mandatory in nature with respect to the information obligations, the general terms and conditions and the right of withdrawal. This means that the rules mentioned above may not be deviated from (to the detriment of the consumer). If this does happen, it leads in principle to defeasibility. A characteristic of defeasibility is that a consumer would have to invoke the ground for defeasibility. In terms of consumer rights, this is seen as a high threshold for consumers. It therefore also follows from case law that the court should examine ex officio whether the clause should have effect, regardless of whether or not the consumer has invoked it in the proceedings.

In conclusion

In conclusion, it can be said that distance contracts with a consumer are subject to a stricter regime than when two companies trade with each other. The legislator created this regime in order to protect the consumer as the weaker party. There is a duty on the seller to fully inform the consumer not only about the product, but also about his rights. In addition, both the legislator by means of presumptions of evidence and the courts by means of the ex officio review help the consumer when it comes to unreasonably onerous clauses in general terms and conditions. Whereby the consumer can also dissolve the contract without giving reasons.

As a trader, it is therefore important to be aware of the rights that apply to consumers and the obligations that are associated with them for you as a seller. After all, failure to comply with these obligations can result in severe penalties. To avoid this, you had better be aware of the rules governing distance selling, especially in relation to consumers.

If you have questions about what this means specifically for your webshop, or are you unsure whether your sales process is set up correctly? Please contact one of our Retail specialists.

This page was last updated on August 16, 2023.