The importance of the text on the order button in the webshop

Nowadays, we frequently order online: from groceries to furniture, and from electronics to clothing. This is known as a remote agreement. In this case, the buyer and seller do not meet in person, as the agreement is made via the internet or, for example, by phone.

Additional Rules for Consumer Purchases

If the seller is a professional party and the buyer is a consumer, it is also a consumer sale. Additional rules apply to this. For example, if the option to pay afterwards is chosen. According to the rules of consumer purchases, the order button must clearly indicate that the consumer is entering into a payment obligation. This is specifically laid down in Article 6:230v paragraph 3 of the Dutch Civil Code (hereinafter: BW).

In recent years, there has been confusion in Dutch case law about whether an order button with the text ‘place order’ meets the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code. Different courts have issued conflicting judgments. For example, a claim was rejected by one court while the same claim was upheld by another court.

For that reason, the Supreme Court saw fit to address this question. This followed from preliminary questions posed by two judges. My colleague Koen Wanders has previously explained what a preliminary question entails. In this article, I will discuss the Supreme Court’s rulings and explain what these rulings mean for both consumers and traders.

The text ‘place order ‘ on the order button does not suffice.

In the first ruling, a customer ordered several items by clicking the ‘place order‘ button. The customer chose the option to pay afterwards. However, the payment was not made, prompting bol.com to take legal action.

Whether it is clear that a payment obligation has been entered into and the order button thus meets the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code is determined solely by the text on the order button, according to the Court of Justice. Information about a (possible) payment obligation received during the ordering process plays no role. Moreover, the text must be sufficiently clear and unambiguous. This is assessed based on what the average consumer expects and understands.

The Supreme Court ruled in this case that the text ‘place order‘ does not meet the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code. The average consumer does not automatically associate the text on the order button with the obligation to pay. This also applies to order buttons with texts like ‘order’ and ‘complete order’.

Partial annulment of the agreement in a default judgment.

If the order button does not meet the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code, the judge may annul the agreement (in whole or in part). The complete annulment of the agreement has retroactive effect. This means that the situation existing before the agreement was concluded must be restored. If the parties have already performed any acts, they are entitled to the undoing of those performances. This means that the consumer must return the product to the trader, and the trader must refund the amount paid. The product may have lost some of its value. Under Article 6:204 paragraph 1 of the Dutch Civil Code, this loss of value is the trader’s responsibility.

The general principle is that the agreement is annulled in its entirety. However, the judge may only annul the agreement in its entirety if the consumer consents to this or does not object. This means that if the consumer does not appear in the proceedings, the judge may only pronounce partial annulment, applying a discount on the amount paid. According to the Supreme Court, a discount of one-third of the amount paid is often reasonable. However, the judge may deviate from this.

Incidentally, after the default judgment has been rendered, the consumer can still invoke the complete annulment of the agreement.

Medical Assistant

In the second ruling, it involved a company offering a medical assistant training program online. A consumer enrolled by clicking the ‘sign up now’ button. Later, the consumer stopped the training and also ceased payments. Consequently, the training company demanded payment of the remaining tuition fees.

However, the order button did not meet the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code. The consumer appeared in court to demand the complete annulment of the agreement. The training company, on the other hand, claimed compensation for the lessons the consumer had already taken in the event of total annulment of the agreement. It was up to the Supreme Court to determine whether a trader is entitled to compensation on the grounds of undue payment or unjust enrichment after the agreement has been completely annulled under Article 6:230v paragraph 3 of the Dutch Civil Code.

According to the Supreme Court, the complete annulment of the agreement results in the trader performing without obligation. The trader may then be entitled to compensation. The legal basis for this is the so-called undue payment or unjust enrichment. It must be taken into account that the complete annulment was caused by the trader. Therefore, the compensation must remain reasonable. An excessive compensation would remove the deterrent and effective purpose of the sanction.

Advice

These rulings show that it is important to consider the text on the order button on your website. If this order button does not meet the requirements of Article 6:230v paragraph 3 of the Dutch Civil Code, the agreement may be partially or completely annulled with all the resulting consequences. Do you have a question about the order button on your website? Or do you have any other questions following this article? Please feel free to contact one of our lawyers by mail, telephone or fill in the contact form for a free initial consultation. We will be happy to think along with you.