Duties And Rights In Formation Of A Contract

Duties and Rights in Formation of a Contract

Introduction

In order for this type of online trade, it must demand and show security so that users trust the platform when making their purchases. We must try, therefore, that consumer transactions are as sure as possible. In relation to the safety of consumers, article 23 of the LSSIYCE states that “the contracts concluded electronically will produce all the effects provided by the legal system. When consent and other requirements necessary for their validity ”concur”. That is, the contracts that are held electronically, despite not stating on paper, will be valid and will produce all their effects.

Developing

According to section 2 of this article, "to the conclusion of contracts electronically, the prior agreement of the parties on the use of electronic means will not be necessary," seeks to encourage the use of these means. Notwithstanding that certain contracts have to record on paper necessarily, the fact that the contract is contained in an electronic support, will be equivalent as exposed to us in the district .As in this work we deal. 

We will present a series of concepts of the commercial area in order to formalize the contract. Advertising is the communication carried out in a commercial activity with the objective of achieving the hiring of the good or service, that is, it tries to create in the consumer the need to acquire the offered product. Commercial communications are commercial messages made by a seller who seeks to reach the client directly, even addressing said contract (for example, a commercial e-mail that already redirects you to carry out the procedures to formalize the hiring).

Unlike advertising that only tries to show the product, commercial communications aim to be the first phase of the contract, that is, they are a bridge. It seeks to inform the client and about the contract. The information that is transmitted to the consumer must contain all the elements that will contain the contract, giving the consumer, if you accept the offer, all the shared information will be part of this.On the other hand, commercial communication or offer, has a significant importance in the negotiation so that the perfection of the contract occurs; 

So, one person gives the other to be able to create the contract. According to article 20 of the LSSIYCE, promotional offers; How to include discounts, gifts, promotional games or contests. Offers are related to advertising. Podemos exigir veracidad al empresario y conformidad de la publicidad con lo que se vaya a contratar, es decir que el consumidor podrá exigir al empresario que todo aquello que se le ofreciera conste en la celebración del contrato. En el caso del comercio online, el consumidor tendrá un formulario que derivará en el contrato, sin estar frente a un empresario con el que poder negociar.

El contrato de adhesión es un contrato estandarizado, si no es aceptado por el consumidor, éste no podrá contratar los bienes o servicios pertinentes. Existen diversas sentencias del Tribunal Supremo (TS) acerca de las discrepancias entre lo pactado y lo ofertado. El TS da más relevancia al pacto, prevaleciendo el principio de autonomía de la voluntad, renunciando a lo publicitado más favorables al consumidor, si esto consta en el contrato expresamente. Aunque bien es cierto que, existe jurisprudencia que apunta en la dirección contraria, buscando que la oferta se debe incluir en el contrato y mantenerse, aunque no figura en el contrato expresamente.

 Una vez que el consumidor se decanta por contratar a un empresario, trendrá que confirmar al consumidor o usuario que ha recibido su aceptación como se nos expone en el artículo 28 de la LSSIyCE. el oferente está obligado a confirmar la recepción de la aceptación al que la hizo por alguno de los siguientes medios: el envío de un acuse de recibo por correo electrónico u otro medio de comunicación electrónica, o por un medio equivalente al utilizado en el procedimiento de hiring. Un consumidor, normalmente, se encuentra frente a un contrato de adhesión. Un contrato con clausulas preestablecidas, las cuales tendrán que aceptar prestando su consentimiento.

 Como en Internet no es habitual el contacto directo con el empresario para la negociación, hay normas que tratan de proteger al consumidor frente a posibles desequilibrios contractuales. As well as the defender, the rights protected by article 9 of the LCGC “The Judicial Declaration of Non -incorporation into the contract or nullity of the general conditions clauses may be urged by the adherent in accordance with the general rules regulatory of the contractual nullity” , so, the declaration of non -incorporation or nullity of any clause can be urged before justice and thus, defend their interests. 

Usually, a contract holds clauses called General Conditions of Contracting. In the LCGC 7/1998 they are defined in its article 1 as “predisposed clauses whose incorporation into the contract is imposed by one of the parties. Regardless of their material authorship, their external appearance, their extension and any other circumstances, having been written in order to be incorporated into a plurality of contracts ”. In other words, as a general rule are those clauses that an entrepreneur includes in all his contracts.We must take into account, in addition to the previous ones, the abusive clauses

.These are regulated in the TRLGDCU in its article 82, according to this rule, the abusive clauses are “all those stipulations not negotiated individually and all these practices not expressly unseen that, against the demands. An important imbalance of the rights and obligations of the parties derived from the contract ”. The content of the conditions is considered abusive when they generate a contractual imbalance, as well as business practices. In article 80 of the TRLGDCU a series of requirements to the general conditions are collected, thus being subject to primary control.

 These requirements, consist as a series of principles, the concretion, clarity and simplicity in the writing facilitating direct understanding. Accessibility and readability allowing the consumer to know prior to the conclusion of the contract on its existence. And finally, good faith and just balance between rights and obligations of the parties, which excludes the use of abusive clauses. Also the provisions of article 7 of the LCGC is provided to the control of the general conditions. The control of this type of clauses, tries to verify that there is no contradiction with this law or with another standard, except for cases of contravention.

The law tries to protect the interests of consumers, they will not be considered as part of the contract. The consequences fruit of the control are reflected in articles 8 of the LCGC and 83 of TRLGDCU, the clauses that do not comply with the stalbid.The Registry of General Conditions of the Hiring will carry out another control to this type of conditions. In this registry, the clauses corresponding to the consideration of general contracting conditions may be registered. The clauses to which we are referring, will have to adjust to a series of criteria: transparency, clarity, concretion and simplicity.

If for any reason, they enter into contradiction with the particular clauses of each contract, the latter will prevail over the general conditions. Although the control of this record is similar to what is established in the LCGC, it will focus only on the content of the clauses.The abusive nature that some clauses may contain, can be appreciated if we take into account the nature of the asset or service object of the contract, also considering, all the circumstances established at the time of the conclusion of the same. And as well as the others that are part of the contract, the clauses that determine the lack of reciprocity may be abusive.

The disproportionate guarantees imposed on the consumer, who go against the rules on competition and applicable law, etc.It cannot be determined that a contract is ineffective while it can be subsist without clauses, whether general or abusive conditions. having the nature they have either declared void or not put. In the adhesion contracts that are held online, we can observe, certain differences in the hiring process carried out by the Internet that is carried out in physical presence.In sale, perfection does not occur at the time of payment.

It is done at the time that the parties agree to link, because it is a provision of the contract and not the perfection of the same. It is regulated in the Civil Code in article 1254 that “the contract exists since one or several persons consent to force them, with respect to another or others, to give something or provide some service” and in article 1258 “the contracts are perfected for mere consent, and since then oblige, not only to the fulfillment of the expressly agreed, but also to all the consequences that, according to their nature, are in accordance with good faith, use and law ”.

conclusion

As we have previously stated, the established hiring form is adhesion hiring.The consumer, first, will carry out the product selection process that you want to acquire and mark the option I most wanted, usually redirect to another page where they will have to fill out a form with their personal data, delivery address and invoice, if it were different and a means of contact (either e-mail or telephone). Said consumer, during this process, will have access to the general contracting conditions and other clauses will accept to proceed with the choice of the payment method, if there were more than one (against reimbursement, credit card, banking domiumization, etc.).