/ Exclusion of the right of withdrawal: regulation is under public consultation

The citizen consultation on the exclusion of the right of withdrawal is available from February 18 to March 10, 2022. We recommend reviewing this news alert and how the right of withdrawal exclusion will be implemented.

María Ignacia Ormeño Sarralde
Associate Attorney
Alessandri Abogados

The Ministry of Economy published the regulation that governs the form and conditions in which suppliers must communicate the exclusion of the right of withdrawal when applicable, as well as the goods and services in respect of which such exclusion shall apply.

This regulation is issued by virtue of the incorporation of Article 3 bis paragraph b) to the Consumer Protection Law (LDPC) which establishes that in contracts entered into by electronic means, and in those in which an offer made through catalogs, notices or other form of remote communication is accepted, the consumer may unilaterally terminate the contract, without giving a reason, within 10 days from the receipt of the product or from the contracting of the service and before the provision of the same.

This rule entrusts a regulation to regulate the form and conditions in which the supplier must communicate the exclusion of the right of withdrawal, when applicable, as well as the goods in which exceptionally and due to their nature such exclusion will be applicable.

Main points addressed

1. Exclusions with respect to goods or products:

• Goods which by their nature cannot be returned, may deteriorate or expire rapidly, understood as such;
  • Goods which, due to the mere passage of time, lose their suitability and/or functionality for the purpose for which they were offered and acquired, such as articles of daily press and magazines;
  • Goods whose use, prior to the exercise of the right of withdrawal, implies their deterioration or devaluation such as to prevent their commercialization in the conditions originally offered;
  • Goods which are perishable or which are intended to be used or consumed within a short period of time; and
  • Goods for which the sole purpose of using the right of withdrawal is to take advantage of price fluctuations by end consumers.
• Goods made or customized according to the specifications instructed by the consumer.
• Goods for personal use which are not suitable for return for reasons of health protection or hygiene and whose packaging has been opened.

2. Exclusions in contracts for the provision of services

The 10 days are counted from the contracting of the service and before the beginning of the provision of it, unless the supplier has expressly stated otherwise and has informed the consumer in a timely manner.

3. Communication of the exclusion of the right of withdrawal

It must be communicated in the same place where the price and the conditions of purchase or provision of the service are informed, by means of an unequivocal, prominent and easily accessible warning at the time of displaying the good or service offered, and always prior to the conclusion of the contract and/or payment of the price, so that the consumer may, before purchasing the product or hiring the service, know if it is excluded from the exercise of the right of withdrawal. In addition, it adds that suppliers offering goods or services through e-commerce platforms operated by third parties (it could be understood as marketplaces) must provide them with information regarding the exclusions to the exercise of this right.

4. Communication on how to exercise the right of withdrawal in non-excluded cases

Suppliers shall inform when appropriate in accordance with the provisions of the final paragraph of article 3 bis of the LDPC:

• value of the original packaging elements.
• value of labels.
• warranty certificates.
• user manuals, boxes and protection elements.

In order for the consumer to know the total cost of such items in case of exercising the right of withdrawal.

The above must be informed in the same place where the price and purchase conditions are informed.

5. Validity

This regulation shall become effective 6 months after its publication in the Official Gazette.

Participate in the citizen consultation here.

Forthcoming regulations under consultation:

• Regulation on alternative dispute resolution systems (article 3 paragraph g) of LDPC).
• Regulation on the obligation to inform the shelf life of products.

If you require assistance for participation, please send an email to alessandri@alessandri.cl.