The statutory right of withdrawal in e-commerce: comparative study of European law and Swiss law

The development of e-commerce has undeniably been beneficial to the global economy and society; it brought new opportunities and simplified the process of shopping and trading. Nonetheless, the unique particularities attached to e-commerce also created new challenges and gave rise to various consumer-related issues. In order to address the risks accompanying e-commerce, different consumer-protective instruments may be applied. In the area of contract law, these notably include information duties and the right of withdrawal. The right of withdrawal is commonly meant to protect a party who, in a particular context or a particular type of contract, is deemed to require protection. It is typically used in consumer contracts to protect the consumer from making rash decisions, by giving her the possibility during a relatively short ‘cooling-off period’, to go back on her decision to conclude a contract. Such an intervention in the binding force of the contract aims at compensating the unequal positions of co-contracting parties. In Europe, consumers enjoy a statutory right to change their mind on purchases made online within 14 days. Swiss law does not provide e-consumers with a similar mandatory right although many attempts to change the law on this point have been undertaken over the past years. In 2015, the Swiss Parliament once again turned down a project aiming at introducing such a statutory right in e-commerce. This raises the questions of why the Swiss authorities keep on refusing to amend the legislation on this topic to bring it in line with European law, and more fundamentally whether a right of withdrawal is appropriate in the context of e-commerce. This thesis will attempt to explain, in light of the European and Swiss legislations, what is the right of withdrawal, in which context and circumstances this instrument is used and why it may or may not be relevant to made it mandatory in e-commerce. In analyzing the related differences in these two aforementioned legislations, we will not neglect to also provide the reader with an insight of the main differences between European and Swiss laws as regards general e-consumer protection.

Mémoire de master Droit Univ. Neuchâtel, 2015 Mémoire de master : Université de Neuchâtel, 2015