contract-law european-union consumer-protection
Can a company&#39;s terms of service prevent consumers of using their right of withdrawal (europe)
<p>There is a company (from england) that provides services online that has the following in their terms of service:</p>
<blockquote>
<p>Subscriber agrees that its assent, given electronically, will have the same legal effect as if it had been personally signed by Subscriber. To the extent permitted by law, these Terms of Use are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically.</p>
</blockquote>
<p>That way a subscriber wouldn't have the right of withdrawal, which means that you can cancel the subscription, but you won't get your money back for the first period.</p>
<p>Can any terms of service prevent a customer from exercising any right at all? (in europe)</p>

<blockquote>
<p>Can any terms of service prevent a customer from exercising any right at all?</p>
</blockquote>
<p>No. Many statutes provide that the underlying rights cannot be waived by contract. Accordingly, clauses that contravene such legislative protections are null and void no matter how explicitly those clauses purport to establish a waiver thereof.</p>
<p>That type of legislative provisions is more common in matters where a party's bargaining power tends to significantly outweigh others'.</p>

<h2>Can a contract override your rights?</h2>
<p>In the broadest terms, that is exactly what a contract does: when entering a contract you give up rights that you already have (e.g. the right to keep your money) in exchange for something else (e.g. the right to use a service).</p>
<p>For example, I have the right to live in a residential property that I own but if I lease that property to someone else, I give up that right in exchange for cash paid on a monthly basis.</p>
<h2>Can it override any right?</h2>
<p>No.</p>
<p>There are two fundamental tenants in the common law of contract:</p>
<ol>
<li>You can’t contract outside the law,</li>
<li>Subject to 1., you can contract to do anything.</li>
</ol>
<p>So that means that a “contract” for a “hit” (assassination) is not a contract and can’t be enforced in a court because it’s purpose is illegal (murder is illegal - just in case you didn’t know). It should properly be called an agreement - if you enter these sorts of agreements you don’t have to worry about being sued if you breach it; you just have to worry about extra-judicial remedies like a bullet in your brain.</p>
<p>More prosaically, in the last few decades, most jurisdictions have passed consumer protection laws which do various things including:</p>
<ul>
<li>implying terms into a contract, or</li>
<li>creating rights that exist alongside the contractural rights.</li>
</ul>
<p>Depending on the particular law, these terms or rights may be able to be “contracted out” i.e. agreed by the parties not to apply, or the law may say they can’t be contracted out. They also may apply even if the contract is otherwise to be interpreted under the laws of a different jurisdiction. For example, Australian Consumer Law apples to anyone doing business with someone in a Australia and the GDPR applies to any personal data collected from anyone in Europe even if the contract is under, say, US law.</p>
<p>Therefore, it’s quite common to see terms in contracts that start with “To the extent permitted by law ...”, particularly in circumstances where multiple jurisdictions could apply such as the internet.</p>
<p>This does exactly what it says: if what we say in the contract is legal under applicable law then this is what happens but if it isn’t legal then what’s legal is what happens.</p>
<h2>Your particular example</h2>
<blockquote>
<p>To the extent permitted by law, these Terms of Use are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically.</p>
</blockquote>
<p>Well, as contract drafting goes, it’s a mess but let’s see if we can break it down.</p>
<blockquote>
<p>To the extent permitted by law</p>
</blockquote>
<p>Straightforward, the contract must comply with the law and, if any bit doesn’t, ignore that bit.</p>
<blockquote>
<p>these Terms of Use are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect,</p>
</blockquote>
<p>Okay, so if it’s legal to contract out, we’re contracting out.</p>
<blockquote>
<p>because they were entered into electronically.</p>
</blockquote>
<p>But we’re only contracting out if this contract was entered electronically. Look, it’s probably not possible to enter the agreement with a “wet ink” signature so this phrase will likely never matter. But, if you did enter the contract by meeting face to face or snail mail, then ignore the contract and just apply the law.</p>
<p>Now, UK law has a 14 day <a href="https://www.citizensadvice.org.uk/consumer/changed-your-mind/cancelling-a-service-youve-arranged/" rel="nofollow noreferrer">cooling off</a> period for services arranged <em>by a consumer</em> online, by phone or by post and this cannot be contracted out of. So, if UK law applies <em>and the customer is a consumer</em> the cooling off applies. However,if the customer is a business there is no minimum cooling off period.</p>
