Legal exceptions to the right of withdrawal / cooling off period

Written by Connor Rakers on February 08, 2022

Theright of withdrawal, the cooling-off period or the right of rescission. All words with the same meaning, namely: the consumer's right to cancel the purchase within 14 days when buying at a distance. We have detailed the exact rules ina separate blog. In this post we would like to discuss theexceptions to the right of withdrawal. In other words, which products must be returned and which items may be refused?

Only legally defined exceptions may be refused

The law is clear: the right of withdrawal applies to distance selling. This right does not apply to legally defined exceptions. You may not decide which items may be returned and which may not! A number of webshops were fined heavily for imposing unjustified restrictions. To protect you as a member, we have listed all the exceptions for you.

What are NOT exceptions ?

First, it is important to show the most common mistakes. Some things are often exempted, while legally they should not be. The following itemsmay NOT be exceptedand must be returned:

Special offers.
Products you ordered especially for the customer.
Second-hand products.
Hygienic products that have not been sent with seals on.
Products whose packaging has been opened.
Products with damage.
Gift cards.

We often see webshops exempt products ordered especially for the customer from the right of withdrawal. However, the fact that you do not have a product in stock or order it elsewhere does not matter to the law. These products cannot be excluded from the right of withdrawal. By law, only custom-made products can be excluded; a standard product is not a custom-made product. What does constitute customization can be read under the heading "What can be excluded?" The fact that damaged products can also be returned may surprise you. If a customer damages a product during the cooling-off period, you still have to take it back. However, you may charge the consumer for the damage. This is called depreciation. These products can never be excluded from return.

What can be excluded ?

Many stores wonder which products they may or may not refuse if a customer wants to return them. No wonder, because the rules about this are not always easy! Below we have briefly summarized it for you, in order from most to least common:

First of all, customization. What does or does not fall under this?

The main rule is that if the client orders something within the options you offer him, it is not customization, and if the client orders something outside the options you offer, then it is customization. It doesn't matter if you offer a product with five different options or twenty; as long as the final product is made using standard options, it is not customization.So what is customization? If it involves more than just standard options, then it does fall under this. For example, if the customer asks for a color that you don't normally offer, if he is completely free to determine the size of your product himself, or if he has it personalized by having his name engraved on it, for example. Good to know: so it doesn't matter if you have a certain combination of standard options in your warehouse, or if you have to specially order them from your supplier as soon as you receive the order. According to the legislator, the customer has little to do with this; after all, it happens behind the scenes with you, and the customer doesn't care about that.

The product poses a health risk or is unhygienic if it is returned

Note:This exception only applies if you have 1. Sealed the product and 2. Have informed the customer that the product cannot be returned if that seal is broken. So what exactly falls under this category of products? In terms of hygiene, it must be a product that cannot be (reasonably) cleaned enough to return after use. For example, earrings can be cleaned, and so you may not except these. A toothbrush, or a pacifier for a baby, cannot be cleaned enough to sell again (and if you can, it can only be done in an expensive, special way that is disproportionate to the product). As for health risks, they can take many forms. Some stores deal in things that can be inherently dangerous: think of some medical devices, drugs, supplements or cosmetics.

Products with a limited shelf life

Some products only have such a short shelf life that by the time they are returned, they are of no use to anyone. For example, some food products have a limited shelf life, andwouldtherefore pose a health risk by the time they are returned. So a meal kit or a jug of milk can be excepted for this reason. Foods that do have a long shelf life, such as dried dates or a chocolate bar, cannot be excluded. These can often keep for months. So "perishable" is in practice also interpreted as "perishable".

Digital content

Note: Here too, you must inform the customer in advance that he or she is waiving the right of withdrawal upon purchase, otherwise this ground does not apply. That way you can prevent someone from buying your app, e-book or license code, then copying it, then returning it. This would make trade in digital content virtually impossible, which is why the legislature exempted it.

Services

With services, a consumer also has a 14-day cooling-off period from the time he orders. But sometimes someone orders a service that must already be performed within those 14 days, and then of course you can't reverse that.Fortunately, there is an exception for that. "Return" (cancellation) of services you can refuse if you: 1. Have already started performing 2. This has been done with the express prior consent of the client 3. The customer has waived their right to cancel That may sound like a lot, but fortunately it's easy to manage. When checking out, make sure you have a checkbox by which the customer declares to waive their right. In most cases, you already have explicit consent from the customer (but you can always ask for it again). Then all you have to do is start executing.

Goods with fluctuating value

Some goods may have a different value by the time you get them back than they had when you sold them. The easiest example is gold. If someone buys (a product made of) gold from you and can return it, he can keep it and resell it again for a higher price if the value goes up, but return it to you if the value goes down. Then he could speculate risk-free, all the profit is his, and all the loss is yours. Fortunately, the legislature has exempted this. Now, of course, gold is an obvious example. But today there are also many examples of products where it is less clear. For example, recently we have seen a lot of interest in collectible cards, whose value can sometimes change extremely within a few days (for example, because a new printing is announced of copies that were previously rare). More examples can be thought of, but currently this is still a gray area.

Products that are irrevocably mixed with other items after delivery

Some products cannot be recovered after delivery. Consider a webshop where you buy a floor, and as part of the agreement, the floor will also be installed at your home. You then ordered it online, and had little to no opportunity to try it out (see how it would look in your home), and yet you have no right of withdrawal. Makes sense, of course, because in this case the seller can't take the floor out again without sustaining significant damage. In this case, this is due both to the substantial labor cost to take the floor out again, and the fact that the floor itself can also be damaged by its removal. Are you in a situation where damage in either of these two forms will occur if the product is to be returned? Then the product is likely to fall under this exception.

Services relating to the provision of accommodation other than for residential purposes, transportation of goods, car rental services, catering and services relating to leisure activities, if the contract provides for a specific time or period of performance.

This is a very long description! But what it says is not complex; it is more of an enumeration. The easiest way to understand this ground is to think of reservations. Are you reserving something for a certain time, so your counterparty can't give it to anyone else? Then you have no right of withdrawal. Think about reserving a hotel room, reserving a spot at a concert, reserving a car, and so on.

Alcoholic beverages whose actual value depends on fluctuations in the market beyond the trader's control, and whose delivery can only take place after thirty days

This is a very detailed condition. Don't bother memorizing it, because it doesn't occur very often. But once you buy an exceptionally expensive wine or whiskey, such one that is actually not meant to be drunk but to be invested in, remember the exception we mentioned above about goods with fluctuating values, and that here you often do not have a right of withdrawal because otherwise you can start speculating risk-free.

Products sold at public auction

Note that this only applies to a purchase at a real offline auction, where you can bid by phone or over the Internet. Thus, at online stores, this is virtually non-existent.

Newspapers, magazines or periodicals, with the exception of an agreement for the regular delivery of such publications

So this is an exception to an exception. To make it simple: do you order one of these writings once? Then you don't get time to change your mind, because otherwise you can read the weekly magazine and return it immediately; and get a refund of the purchase price each time. But do you go for a subscription instead of a single magazine? Then you do have reflection time. This is because, unlike with the single purchase, now you have not had all the enjoyment of your purchase, at the time you change your mind (after all, you have not had access to all the issues to come).

A contract where the consumer has specifically requested the trader to visit him to perform urgent repairs or maintenance there, excluding additional services not expressly requested by the consumer or the supply of items other than those necessary to perform the maintenance or repairs.

This is easiest to understand using an example. Imagine this: there has been a storm and your roof has started to leak. If you do nothing about this, you will soon have massive water damage. You call a roofing company and ask them to come to your place as soon as possible to fix it. After fixing the leak, the company discusses the costs with you. They want to charge you for the labor and materials used. Besides fixing the leak itself, they also coated part of the roof, "Otherwise we'll see you again in a few months," they say. They want to charge you for that as well. On the off chance you agree to this and pay the bill for all the work done, but afterwards you still have your doubts. For the repair itself and the materials used for it, you are obliged to pay. However, you do have time to think about the coating of your roof. After all, it was done without your asking for it and without your consent. However the roofers believe this was really necessary; they cannot force you to take this additional service from them. After all, you may have called these roofers because they were the fastest, but may prefer to choose a cheaper service provider for this other product.

Inform about exceptions to the right of withdrawal !

Do you exclude certain products from the right of withdrawal? Then it is very important that you clearly inform the consumer about this before purchase. Simply stating this in yourgeneral terms and conditionsis not enough. We recommend that you do this at least on a page titled "Returns" that can be found directly from your main menu. We havesome sample textsfor this for you as a merchant. With these you can inform the consumer when the legal cooling-off period applies.

The law

The exceptions are neatly listed in the law. You may only exclude these legal exceptions from the right of withdrawal/reflection period. Making your own other exceptions or imposing restrictions is therefore not allowed. Are you in doubt? InArticle 6:230p BWyou will find all the exceptions.