In its current state of law, the consumer as the weaker party of a given legal relationship - can benefit from special protection. However, similar protection does not apply to sole traders who are in disputes with larger entities.
From June 1, 2020, regulations will come into force that will allow a sole trader to benefit from the protection provided by consumer law. The planned regulations will enable the differentiation of the position of the smallest companies and those with a significant advantage over them - larger entities. They will reduce the disparities arising in transactions that are not related to the professional activity of small businesses.
According to Art. 221 of the Civil Code, a consumer is a natural person who enters into a legal transaction with an entrepreneur that is not directly related to their economic or professional activity. The regulations coming into force do not make changes to the definition of a consumer itself, but allow the use of the protection that is a consumer privilege - also to sole traders in dispute with another entrepreneur.
Additional protection will cover natural persons who enter into contracts directly related to their economic activity. The most important condition for covering consumer regulations is the lack of a professional character of the contract - on the side of the entrepreneur running a sole proprietorship.
The requirement of the same level of care, knowledge and professionalism from a small entrepreneur entering into a contract with a large, specialized company remains unjustified. Especially in situations where a given contract is not directly related to the specialization of one of the parties - making it weaker. According to the planned amendment of the regulations, the decisive factor for assessing whether an entrepreneur can be treated as a consumer will be whether a given act has a professional character for them. The legislator indicates that the professional character - results primarily from the subject of the activity carried out by the given entrepreneur, which is determined in particular on the basis of the entry in the CEIDG.Example: Agreements concluded by an entrepreneur running a clothing store with clothing manufacturers will have a professional character for him. On the other hand, the purchase of a computer that will subsequently be used to conduct business is a different situation. In this case, the purchase of a computer is no longer directly related to the type of activity carried out by the entrepreneur - so it does not have a professional character or fall within the scope of his specialization.
With the entry into force of the amendment in question, entrepreneurs will be entitled to protection in the form of a warranty for defects. It will be much easier for them to complain about the goods and services they purchase, but also to avoid unfavorable contractual provisions - on the basis of regulations on prohibited contractual provisions (abusive clauses). In addition, they will have the right to withdraw from a distance contract concluded outside the premises of the company. Taking into account the entry into force of the amendment in question, it is worth bearing in mind when concluding contracts between entrepreneurs.
The article was prepared by the Law Office of Arkadiusz Jaskuła, which provides legal services for companies, also for SOTE and our customers: www.adwokat-jaskula.pl
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