(The right of termination of contracts by consumers as a result of article 36 of RDL-11/2020)
How can I as a consumer terminate a contract for breach of contract by the seller arising from the state of alarm?
This article will proceed as affected by Article 36 of RDL11/2020 regarding the termination of any contract entered into by consumers and users during the state of alarm, whether they are for the purchase and sale of goods or the provision of services. It affects both contracts entered into before the state of alarm and those entered into during the state of alarm.
This provision applies whenever the breach by the employer derives from the measures adopted during the state of alarm, i.e. that because of such measures it is impossible for the employer to comply with the contract (e.g. due to the closure of the store or factory).
Therefore, can the consumer terminate the contract in any case?
In order to be able to terminate the contract, the consumer must express this within 14 days and must first try to reach an agreement with the seller or entrepreneur, i.e. try to reach a modification of the contract that satisfies the interest of both parties. It is therefore mandatory to try to reach an agreement before terminating the contract.
How long do the parties have to negotiate? The parties have 60 days to negotiate. Until these 60 days have elapsed, the contract cannot be terminated by the consumer.
From when do those 60 days start to be counted? This period begins to run from the time the employer fails to comply with its obligation, i.e., from the impossibility of performing the contract.
Once these 60 days have passed without reaching an agreement, how long do I have to terminate the contract? You have 14 days to terminate the contract. This period is a statute of limitations period, so it is important to request the resolution in due time.
Once the contract is terminated, can I ask for a refund of what I have paid?
According to Article 36(2), if the contract has been terminated as a consumer you can claim a refund if the price has been paid, i.e. if you have paid for the product or service.
If nothing has been paid, the contract is only terminated, but the seller or service provider does not have to return anything.
(Complaints about successive treatment services, gymnasiums, English academies, etc.)
Do I have to pay gym fees? School canteen? What about the English academy? Make no mistake, you do not have to pay for any service you do not receive.
The third paragraph of Article 36 of the Royal Decree approved with the measures to deal with Covid-19, offers the consumer different options in contracts for the provision of services of successive treatment.
First of all, it offers the option of recovering the service after the fact, i.e. when the alarm status ends and or when the service provider can offer it again (e.g. a voucher or gift voucher).
In the event that the consumer does not accept such recovery, the amounts already paid will be refunded for the part corresponding to the period of the service not rendered or the amount resulting from the future installments to be charged for the provision of the service will be reduced, always with the consumer’s acceptance.
Therefore, with respect to the amounts already paid in the part corresponding to the period in which the service will not be provided, the service provider may offer options for recovery of the service a posteriori or reduction of the amounts resulting from future installments. If the consumer does not accept any of them, the amounts already paid for the period not provided will be refunded.
Likewise, the service provider will refrain from submitting new monthly payments until the service can be provided normally.
If you see that your rights as a consumer are being violated, do not hesitate to contact us and we will study your situation.
(Complaints about flights and package tours)
WHAT ARE MY RIGHTS AS AN AIR PASSENGER?
The following article aims to answer some questions about flight cancellations resulting from the state of alarm due to Covid-19.
If your flight has suffered a cancellation, delay or denied boarding due to COVID-19, you need to know that:
You are entitled to reimbursement or alternative transportation:
In the event of a flight cancellation by the airline, the airline must offer you one of three options:
- Refund
- Alternative transportation as soon as possible
- Alternative transportation on another date convenient to the passenger
In the case of round-trip flights purchased on the same reservation, if the outbound flight is cancelled and the passenger chooses reimbursement, reimbursement will also be made on the return flight. If they have been purchased in different reservations, only the price of the cancelled trip will be reimbursed.
You are entitled to care (food, drink, accommodation…).
If you are affected by a flight cancellation, you should be provided by the airline with sufficient food and drink for the time you have to wait, as well as accommodation and transportation between the accommodation and the airport in case it is necessary to stay one or more nights.
In addition, airports must pay attention to passengers with disabilities or reduced mobility as provided for in Reg. (EC) No. 1107/2006.
Attention! the company is no longer obliged to do so if you choose a refund or an alternative transport on another date that suits you. Therefore, you only retain this right while waiting to be transported to its final destination.
You are not entitled to compensation:
When the cancellation of a flight is due to extraordinary circumstances that could not have been avoided by the company, the company is not obliged to pay financial compensation.
In this context, flights cancelled as a result of bans or restrictions issued by the authorities, flights cancelled because they are expected to be empty, or cancelled in order to protect the health of the crew, are considered extraordinary circumstances. This consideration also applies to return flights.
If my flight has been cancelled by Covid-19, can I get my money back?
In the event of a flight cancellation, the airline must offer the passenger the choice between one of the following three options:
- Refund
- Alternative transportation as soon as possible
- Alternative transportation on another date convenient to the passenger
In the current situation and in some cases, the right to alternative transportation as quickly as possible may be affected as there is no certainty as to when transportation can be reinstated on certain cancelled routes. In these situations, refund options or transportation at a later date convenient to the passenger are more beneficial to the passenger.
In the case of round-trip flights purchased on the same reservation, if the outbound flight is cancelled and the passenger chooses reimbursement, reimbursement will also be made on the return flight. If they have been purchased in different reservations, only the price of the cancelled trip will be reimbursed.
The airline does not comply with my rights, what can I do?
If you feel your rights as a passenger have been violated, do not hesitate to contact us and we will study your situation.
What if I have booked a package tour?
First of all we have to ask ourselves what is meant by package travel. In accordance with the Law of Consumers and Users, a combined trip is one that is contracted at the same point of sale, a retailer, and that includes two or more services, such as transportation, accommodation or overnight stay or other services (visits, etc.), provided that everything has been contracted with the same retailer, in a single act.
Therefore, a package trip is not a trip in which we buy a plane ticket on the one hand and accommodation on the other hand.
According to the Package Travel Directive, both the traveler and the tour operator may cancel the trip without penalty in the event of “unavoidable and extraordinary circumstances occurring at or near the place of destination which significantly affect the performance of the package, or which significantly affect the carriage of passengers to the destination” (Article 12 (2) of the Package Travel Directive).
In such cases, the traveler is entitled to a full refund of any payment made for the package within 14 days. Butthese rights of the Directive, which are included in the Consumer Law, have been affected by Royal Decree-Law 11/2020, with a special regulation during the state of alarm.
Many users have contracted package tours, that is, two or more contracted services, which now cannot be carried out due to the exceptional circumstances caused by the coronavirus epidemic and the movement limitation measures.
In this case, the traveler will have the right to terminate the contract before the beginning of the trip without paying any penalty. The user is entitled to a full refund of any payment made, but no additional compensation.
But agencies often claim that they cannot refund the money because the companies have not refunded them either. Therefore, Royal Decree-Law 11/2020 establishes that the collection of this reimbursement is initially subject to the service providers having reimbursedall or part of the amount corresponding to their services.
If the travel organizer, or the retailer, only receives partial reimbursement from the other economic operators included in the trip (hotels or airlines), the consumer will be entitled for the time being to the partial reimbursement corresponding to the refunds made for the amount corresponding to his services, and the agency will issue a substitute voucher for the remainder of the amount, valid for one year. If the voucher has not been used within the year of validity, the consumer may request a full refund of the payment made.
The organizer or retailer shall make the refunds within a period not exceeding 60 days from the date of termination of the contract or from the date the service providers have made their return.
What should I do if I believe my consumer rights are being violated?
If you see that your guarantees as a consumer have been affected by the seller’s management, do not hesitate to contact us and we will study your situation.
