The LGDCU introduces new definitions of distance and off- premises contracts and commercial establishment. It also limits the communication techniques that are considered as such under the new definition. The contracts to which the provisions of title III do not apply are: social services, health-related services, gambling activities and betting, creation, acquisition or transfer of real estate, construction of new buildings, package travel, and timeshare of goods and contracts that must be held before a notary public.
With regard to business communications, the right of the consumer and user to apply for the exclusion of commercial communications has been included, as well as the possibility to opt out of receiving unwanted commercial offers. In addition, the issuer is not entitled to use unidentifiable phone numbers for the purpose of evading such actions by consumers and users.
Concerning distance commercial communications, the aforementioned title includes the requirement to specify explicitly and clearly at the beginning of any conversation with the consumer and user, the identity of the employer, or if applicable, the identity of the person on behalf of which the call is made. It is also prohibited for phone calls to be made before 9 a.m. or after 9 p.m., as well as holidays and weekends.
Regarding pre-contractual information of distance and off-premises contracts, it is included a new obligation by virtue of which the seller must provide to the consumer and user with information concerning certain specific information before the consumer is bounded by the contract. The information to be provided includes the following: information on goods and services covered by the contract, identification of the seller, address of the establishment and the headquarters of the seller, the budget or the price of the goods or services, the cost derived from the use of communication techniques, payment, delivery and claims, the language, the right to withdrawal, the cost of repayment in the event of withdrawal and reasonable expenses and the loss of such right, legal warranty, post payment service and commercial warranties, codes of conduct, duration of the contract, the minimum duration of the obligations, deposits and financial warranties, functionality and interoperability of digital content, and extrajudicial claims (Section 97). The burden of proof in relation to non-compliance with these reporting requirements will fall on the seller.
Sections 98 and 99 require new formal requirements for these type of contracts, as for example the obligation stating that a payment must be made in a clear and prominent manner, or that if the seller calls by phone to the consumer or user to enter a distance contract, he should disclose, at the beginning of the conversation, his identity and, if applicable, the identity of the person on behalf the call is made, as well as to indicate the commercial purpose of the call. In addition, the seller shall confirm the offer to the consumer or user in writing or unless thereof, in any form of a lasting nature. Consumer and user shall only be linked once they have accepted the offer with their signature or by sending their agreement in writing, on paper or by email, fax or sms.
In relation to additional payments where the obligation imposed on the seller stating that until the consumer / user is bound by a contract or offer, the seller must obtain their express consent for any prospective additional payment agreed besides the main contractual obligation.