The binding effects of advertising

New Features in Contract Law

Volumn , Issue , 2007, Pages 169-179

  Møgelvang Hansen, Peter ^a  

^a Department of International Economics and Management   (Denmark)

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EID: 78649907754     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1515/9783866537262     Document Type: Chapter

References (18)

1. Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending to be deleted [the "Unfair Commercial Practices Directive"] is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract [art. 3 (2)].
2. Thomas Willhelmsson. European Rules on Pre-contractual Information Duties in ERA-Forum, scripta juris europaei, Special Issue 2006, European Contract Law p. 24 (concerning The Unfair Commercial Practices Directive).
3. Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees
4. Directive 90/314/EEC on package travel, package holidays and package tours
5. They are now found in the Danish Sales of Goods Act § 76 (1); The Finnish Consumer Protection Code chapter 5, § 13; the Icelandic Consumer Sales Act § 16 (1)(c) and (2); the Norwegian Consumer Sales Act § 16 (1)(c) and (2); Swedish Consumer Sales Act § 19 (2) and (3)
6. The Finnish Consumer Protection Code chapter 8, § 13, Norwegian Act (63/1989) on Craftsmen's Services § 18 and the Swedish Consumer Services Act (1985:716) § 10
7. Reported in Ugeskrift for Retsvæsen 1984 p. 392.
8. The 1984 Supreme Court decision interpreted the contract in the light of the marketing material concerning a question not dealt with explicitly by the contract. The principle may also apply in special cases where the marketing material promises more than the contract actually gives the party, cf. e.g. a decision of July 5th 2004 (case no. 62.786) made by the Danish Insurance Complaints Board. The Board interpreted an insurance contract (a so-called "extended warranty") concerning a laptop computer in accordance with the statements in a sales brochure so that the insurance covered all forms of theft and not only burglary (as the coverage was defined in the terms of the insurance contract). The Board found that the question concerning coverage of theft other than burglary was important to the buyer's decision to take out the insurance and that the insurance company when mentioning the theft coverage in the brochure should have specified in the brochure that the theft coverage included burglary only.
9. Reiner Schulze in ERA-Forum: scripta juris europaei, Special issue 2006: European Contract Law pp. 26-32.
10. The seller is bound only by advertising made by a previous link in the same chain of distribution and not by advertising made by competitors, parallel importers etc
11. [20§ ] (2), Danish Marketing Practices Act (1389/2005); § 29 Swedish Marketing Practices Act (1995:450)
12. Betænkning (1457/2005) om markedsføring og prisoplysning p. 243. The rule proposed by a minority of the commission preparing the act was identical to the tentative rule suggested in a Nordic Report (TemaNord 2001.549 by Kai Krüger and Peter Møgelvang-Hansen): "Misleading commercial advertising incurs liability on the advertisor according to general principles of tort law when the consumer was justified in assuming that the advertised statements would form part of an offer to conclude a contract. If the consumer has suffered substantial inconvenience, the consumer is in addition entitled a reasonable compensation even if no financial loss or expenses has been inflicted on him."
13. Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending to be deleted ("Unfair Commercial Practices Directive") Annex I contains a list of commecial practices which are in all circumstances considered unfair, including "5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising). 6. Making an invitation to purchase products at a specified price and then: (a) refusing to show the advertised item to consumers;or (b) refusing to take orders for it or deliver it within a reasonable time;or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)."
14. Principles of European Contract Law Parts I and II (ed. Ole Lando and Hugh Beale), Kluwer Law International. 2000 p. 161-163.
15. Reported in Ugeskrift for Retsvæsen 1985 p. 877.
16. Reported in Ugeskrift for Retsvæsen 1991 p. 43.
17. During the preparation of the new Danish Marketing Practices Act (1389/2005) attempts were made by a minority of the commission to introduce a rule giving binding effect to advertising. The attempt was unsuccessful. Cf. Betænkning (1457/2005) om markedsføring og prisoplysning p. 243. The proposal of the minority was identical to the tentative rule suggested in a Nordic Report (TemaNord 2001.549 by Kai Krüger and Peter Møgelvang-Hansen): "An advertisement in the context of marketing of products and services to the public is considered a legally binding offer if a consumer, in view of the contents of the statement, its framing or other circumstances reasonably had the impression that the statement was meant to be a binding offer. Statements of the kind dealt with in the preceding paragraph are considered to have been revoked when a similar statement has been made to the public."
18. Benedikte Holberg et al. Forbrugeraftaleloven, Jurist- og Økonomforlagets forlag (2006) p. 121.