الحق في العدول كضمان لحماية المستهلك

Abstract

هذا الحق، على أن تكون في حالتها التي استلمها عليها وقت االستالم وبنفس الكمية والمواصفات . ونتيجة استعمال هذا الحق هو إعادة كال طرفي العالقة العقدية في العقود االستهالكية التي يشملها الحق في العدول الى الحالة التي كانوا عليها قبل التعاقد ويصبح العقد كأن لم يكن، كما يتحمل المستهلك أي تلف أو هالك لسلعة أو البضاعة هالكا كليا أو أو إي استخدام أو تصرف في الخدمة سواء كان يؤدي إلى هالكها جزئيا ، وعلى البائع أو المحترف أيضا أن يلتزم برد الثمن إلى المستهلك خالل مدة زمنية محددة قانونا أو وفق المهلة المقررة لذلك أو على المحترف في حالة مخالفته لها تحمل الجزاءات المدنية والجنائية التي ينص عليها القانون جراء مخالفته بعدم إرجاع الثمن للمستهلك وفق المدة القانونية كما أن يمس أطراف العقد المتدخل والمستهلك فقط في اآلثار المترتبة عنه بالنسبة لألشخاص ويتعدى أثره أي العدول العقد الذي ورد عليه ة به عن طريق اللزوم فهي أيضا يشملها العدول وذالك نظ ار إلى العقود المتصل إلنعدام العقد األصلي لها أو المرتبطة به.

The legislator has stipulated the right to recourseto the consumer as an exceptional protection for the weak party in the contractual relationship in consumption contracts, and this exception is the legal rule that stipulates that the contract is the law of contractors, which is stipulated in the Algerian civil law in Article 106, “The contract is the law of contractors, and it is not permissible to revoke or amend it. The two parties agree to an agreement or for the reasons established by law. " So that renouncing the contract is one of the rights that have been established for the consumer in many legal legislations in the comparative law in order to achieve his interests and as a guarantee for restoring the balance to the contractual relationship that is supposed to be provided in this type of contract, which is an exception to the principle of binding force of the contract and is specific to consumption contracts only. The reason for determining this right is that the consumer is the weak party in the contract and who lacks experience and knowledge compared to the experience of the other party in the contract, which is the interventionist or professional, in addition to the absence of what protects the interests of the consumer in the general theory of the contract, so the laws related to consumer protection resorted to protection. By deciding the right to withdraw from contracting in consumer contracts. The right to withdraw is exercised in the stage that follows the conclusion of the contract, which is the stage of contract implementation, and when the consumer uses his right to withdraw from the contract, the change must be within the legally prescribed period or by agreement if that change is provided according to the agreement between the contracting parties during the contract, and he must also inform Or informing the interventionist of his decision to withdraw according to the form or method that the seller often prepares during the preparation of the contract or as approved by the legal texts or by any possible means before the expiration date of the right to this change according to the legal periods, whether in products or services, and the consumer does not bear any expenses or Expenses when exercising his right to recuse, with the exception of the expenses related to the return of the goods or commodity to the interventionist or professional (seller), and within specified periods and in accordancewith the controls of use This right, provided that it is in the condition in which it was received at the time of receipt and with the same quantity and specifications. The result of using this right is the return of both parties to the contractual relationship in consumer contracts that are covered by the right to revert to the state they were in before the contract and the contract becomes as if it was not, and the consumer also bears any damage or loss of the commodity or the goods or any use or disposal in the service, whether it is It leads to its complete or partial loss, and the seller or the professional must also be obligated to return the price to the consumer within a legally specified period of time or according to the specified time limit for that, or the professional in the event that he violates them shall bear the civil and criminal penalties stipulated by the law for his violation of not returning the price to the consumer According to the legal period, and it affects only the parties to the contract and the consumer With regard to the effects it has on persons, and its effect extends beyond the contract that was received by it to the contracts related to it by means of necessity, it is also covered by the withdrawal, due to the absence of the original contract for it or associated with it‌.‌‌