a) Civil and Commercial Codes

Electronic contracts are fully subject to the rules established by the Spanish Civil Code on obligations and contracts. In addition to these rules, Spain also has specific legislation regulating various aspects of e-commerce.

In this sense, both the Civil Code and the Commercial Code, by virtue of the amendments made by the Law on e-commerce and Information Society, dispose that, in contracts concluded by automatic devices, consent is granted since the declaration of acceptance.

b) Distance sales
Equally applicable to electronic sales is Retail Trade Law 7/1996 in its Chapter on distance sales. This Law defines "distance sales" as sales concluded without the simultaneous physical presence of the buyer and the seller, where the seller’s offer and the buyer’s acceptance are conveyed by a means of distance communication of any nature. Therefore, sales made by telematic means would be treated as distance sales.

Under the Retail Trade Law, operators that conclude distance sales must obtain the relevant authorization and be registered on the Register of Distance-Sales Enterprises, which is located at the General Directorate for Domestic Trade of the Ministry of Economy and Finance.

This Law also establishes the requirements for the terms of distance sale offers, which must include:

– the seller’s identity;
– the special features of the product, the price, and the shipping expenses;
– the payment method, and delivery or types of fulfillment of orders; and
– the period for which the offer remains valid.

In sales of this type, consumers are also afforded a number of rights, such as:

– the need for their express consent to the distance transaction, so that the failure to reply cannot be construed as acceptance of the offer;
– prohibition on unsolicited shipments, unless they are commercial samples;
– the right to withdraw (with exceptions in cases such as the sale of securities subject to market fluctuations) within seven days from the receipt of the product, the exercise of which is not subject to any formality or penalty;
– the seller has the duty to provide the buyer with written information in the language of the offer on the address of one of the seller’s establishments, credit or installment payment terms, and a withdrawal or revocation document that includes the name and address of the person to whom it must be sent and particulars identifying the contract and contracting party.

c) Consumer protection
Whenever e-commerce activities are targeted at consumers, it is necessary to comply with consumer protection legislation, namely Consumer and User Protection Law 26/1984.

Equally applicable is the Standard Contract Terms Law 7/1998, when predisposed clauses are incorporated to a plurality of contracts.

In this connection, e-commerce is specifically regulated in Royal Decree 1906/1999, on telephone or electronic contracts with standard terms, which implements Article 5.3 of the Standard Contract Terms Law.

The Royal Decree establishes the requirements that must be met by distance contracts concluded by telephone, or by electronic or telematic means and which contain standard contract terms. "Standard contract terms" means pre-formulated terms the inclusion of which in a contract has been imposed by one of the parties (regardless of who actually drafted them, or their external appearance, scope, or other circumstances) and which have been drafted for inclusion in numerous contracts.

This rule does not apply expressly to certain types of contract such as, for example, government contracts, employment contracts, contracts for the incorporation of companies, contracts for regulating family relations, and so on.

Conversely, the rules imposed by this Royal Decree apply to those contracts which contain standard contract terms that have been adhered or consented to in Spain, whatever the law applicable to them.

To such effect, the Royal Decree imposes the following obligations when contracting by telephone or by electronic or telematic means with standard contract terms:

– To provide the consumer with prior information on all the terms of the contract at least 3 days before the conclusion of the contract, and to send the consumer the full wording of the standard terms by any suitable means.

– To send to the adhering party immediately (or, at the latest, when the thing is delivered or when performance of the contract begins) a written receipt or, at the adhering party’s request, a receipt on any other lasting medium fit for the means of communication used and information, in that party’s language or in that used to make the offer, on all the terms of the contract concluded.

– The adhering party can exercise the right to withdraw from the contract, without incurring any penalty or expense, within seven business days, according to the official calendar of the adhering party’s place of habitual residence.Time in the seven-day period will start running upon receipt of the merchandise when the purpose of the contract is the delivery of goods or from the conclusion of the contract when the contract is for the provision of services. If the information on the standard terms or the documentary confirmation is provided after the delivery of the merchandise or the conclusion of the contract, time in the seven-day period will start running from the performance of such obligations.

– The pre-formulating party also has the burden of proving that it has performed the duties imposed by the Royal Decree. Such duties include that of ensuring the existence and content of prior information on the terms, the delivery of the standard terms of, and documentary support for, the contract and, if applicable, the express waiver of the adhering party to the right of withdrawal.

In the same vein, as a result of Directive 1999/44/EC, Law 23/2003 on Consumer Goods Sale Warranties was enacted and contains a raft of measures aimed at ensuring a minimum uniform standard of consumer protection.The main innovative feature of this Law is the establishment of a free 2-year warranty for consumers on all consumer goods.The Law aims to offer consumers a range of possible remedies when the goods acquired are not in keeping with the contract, enabling consumers to demand their repair or substitution.