The right of withdrawal as a protection mechanism in electronic commerce

Consumer protection regulations are a challenge, as well as a necessity, in today’s market. This need increases when we face electronic commerce and the need to guarantee security to consumers so that they can venture with peace of mind in the development of contracts entered into and executed by virtual means.

Within Colombian law, in the content of Law 1480 of 2011, the so-called "right of withdrawal" was recognized as a consumer protection mechanism. Its application is based on the recognition of the consumer as the weaker party in the contractual relationship, and allows the consumer to withdraw his consent or, in other words, to "regret" the purchase made without assuming any penalty or cost. This, of course, is a very important exception to the general rule of the enforceability of contracts and the impossibility for a party to unilaterally render a bilateral agreement ineffective.

The study of this law and its application in the world today is particularly relevant in a context in which consumer relations have skyrocketed thanks to the possibility of making contracts for the acquisition of goods and services on a massive scale by digital means.

With respect to the figure of the right of withdrawal in Colombia, it is relevant to highlight that, although its first vestiges occurred in Article 41 of Decree 3466 of 1982, it was not until 2011 that it was introduced as a consumer right, as a weak part of the relationship with producers and suppliers. 

Currently, the right of withdrawal in Colombia is regulated in Article 47 of Law 1480 of 2011, according to which "In all contracts for the sale of goods and provision of services through financing systems granted by the producer or supplier, sale of timeshares or sales using non-traditional or distance methods, which by their nature are not to be consumed or have not begun to be executed before five (5) days, the right of withdrawal by the consumer shall be understood as agreed. In the event that the right of withdrawal is used, the contract shall be terminated and the money paid by the consumer shall be refunded. "

When analyzing the figure of withdrawal from comparative law, we come across regulations that have also addressed it, with certain particularities.

As an example, Chilean law also contemplates the figure. It does so in Law No. 19,496 of 1997 and grants a period of 10 days to the consumer to exercise this right. As a particular element, it should be noted that the rule establishes that the right of withdrawal may be unilaterally excluded by the supplier, as long as the consumer is expressly and clearly warned.

Spanish legislation, on its own, contemplates the so-called withdrawal granting a longer term than the one granted in Colombia (namely, 14 days). Likewise, it establishes an extensive list of scenarios in which the so-called waiver shall not apply, notoriously highlighting the non-application to cases of lodging services.

The Argentine and Brazilian legislations contemplate figures similar to the right of withdrawal, establishing in the first case (Argentine legislation) the mandatory, binding and unrenounceable nature of the figure.

As can be seen, the figure of withdrawal is widely spread in the region, thus recognizing the importance of granting consumer protection mechanisms. It is worth saying that this figure should not be understood only as an advantage to the consumer, since, although it is true that the supplier or retailer is affected by it, it is clear that its existence is a fundamental guarantee to create confidence in their consumers and customers, a requirement of great importance to allow greater participation in the virtual and digital market.

Notwithstanding the foregoing, certain difficulties may be encountered with the figure of withdrawal in Colombia, especially when speaking of electronic commerce with an international component. Although the Colombian law sought to create a mechanism of joint and several liability applicable to any participant in the local chain (allowing the consumer to pursue in Colombia such person who is located in the country), both consumer protection and the liability of a local intermediary do not really solve the underlying problem, since in cases of suppliers abroad it becomes highly inconvenient (the low amounts that these controversies usually have make it economically unfeasible to pursue the collection of such values) to pursue the compliance, even when the responsible person turns out to be the local representative or intermediary.

Therefore, the need to integrate national legislation in this area becomes a necessary step, with a view to recognizing that the digital market is also characterized by its lack of limitation as a result of national borders.

Given that the figure exists and has been recognized and protected locally by various countries in the region, the creation of international standards that are enforceable and recognizable regardless of the location or domicile of the final responsible party would generate greater reliability in the system and fairer results.