When deciding to sell online, it is important to understand whether the target audience consists of consumers or professionals. Not only are the sales techniques different, but so are the legal terms that regulate this activity. How can one determine if their end customer belongs to one type or another? Here’s what you need to know about the topic.
Understanding the difference between a consumer and a professional is very important because, depending on the type of client whose needs are being met, the legal terms that apply to their contracts change. This is why the distinction between these two realities must be clearly evident.
The term consumer refers to a customer who purchases a good or service for exclusively personal use: for example, a person who buys a pair of sneakers for personal use.
On the other hand, the term professional refers to someone who purchases a good or service for work-related use: the most fitting example is an accountant who buys a computer for work. A professional, of course, can also purchase goods or services for non-professional use, but in this case, they must be considered a simple consumer. As can be inferred from this brief explanation, the difference between these two target groups is significant, as are the protections that safeguard the categories of consumers.
If the context in which the purchase takes place is online, it can be very difficult to understand whether the customer you are interacting with is a professional or not. A lawyer, for example, might buy chairs for their apartment, but the same purchase could also be made for their professional office, and in this case, it would indicate a work-related intent. So how can one navigate this landscape? A useful help can be the indication of the VAT number. In fact, customers who intend to purchase for professional use usually use this identifying code to receive an invoice for the purchase made, so they can deduct it from their taxes. When this indication is absent, then the purchase is likely made as a private consumer. The distinction is fundamental because, from time to time, depending on the type of customer being served, the terms and conditions that need to be applied more specifically must be chosen.
When we talk about private consumers, we refer to the B2C (business to consumer) sales model, while in the case of professionals, the sales model is B2B (business to business): in B2C, the rules of the Consumer Code apply, while in the latter case, the Civil Code is referenced. What may seem like a minor detail is actually a difference of fundamental importance because the rules that are valid in one case or the other are indeed very different. A first area of application where the difference is clearly evident is that of the right of withdrawal: this possibility is applicable exclusively when the customer is a consumer, while it is not available for professionals. Many e-commerce sites, however, ignore this difference and offer full refunds even to those professionals who purchase for work use and who, consequently, would not be entitled to it. The so-called legal warranty is also a benefit that applies only to consumers and not to professionals, and it is regulated by Article 128 of the Consumer Code. For professionals, on the other hand, to find something similar, one must refer to the warranty governed by the Civil Code.
The competent court, that is, the court entitled to judge any disputes between the parties, is another factor that marks the difference between the consumer and the professional. In the first case, in fact, the competent court is that of the city where the customer who claims a wrong resides; in the second case, however, the competent court is that of the city where the legal headquarters of the party initiating the lawsuit is located. Furthermore, the choice of the competent court by the consumer is not negotiable but is an imperative rule; in the case of professionals, there may be exceptions as long as they are clearly specified within the so-called unfair clauses, which are another very important element that marks the difference between one category and the other. It is therefore essential to understand exactly what these clauses consist of, as they can be so binding for the client, especially for the professional type.
Abusive clauses are all those rules that characterize a contract but create a significant imbalance between the parties, to the advantage of one of them. As for such clauses contained within a contract entered into with a consumer, they are null and void because they are not provided for by law and can even result in hefty fines (ranging from 5,000 to 5 million euros) for e-commerce from the competent Authorities, which in this case are represented by the AGCM. Abusive clauses, on the other hand, are completely legal in the case of sales to professionals. However, it should be specified that these clauses are only possible if they are accepted by the customer, and this must occur in writing within the sales contract, which must be signed by the parties. Abusive clauses may also include modifications regarding the jurisdiction to be consulted in the event of a dispute between the parties.
One of the biggest changes that has affected both the consumer and professional targets in the field of e-commerce purchases is related to the United Kingdom's exit from the European Union. How can this purely political fact have an impact on consumers? In a very significant way, actually. The European Community has long made available a platform called ODR that serves precisely for final consumers, but also for professionals and companies, to resolve issues related to any problems with online purchases that conclude within Europe. Well, starting from 31/12/2020, that is the date of the entry into force of the so-called Brexit, British customers as well as European ones who purchase on platforms from the United Kingdom will no longer be able to resort to this platform as the United Kingdom is no longer part of the Community. Obviously, all e-commerce businesses are required to specify this clause in detail within the terms and conditions of sale mentioned earlier.
The AGCM is the Authority that has been the official guarantor of competition and markets for over 30 years. Obviously, this entity is also responsible for overseeing the protection of consumers. In fact, its authority extends to monitoring any unfair market practices, the use of unfair clauses, misleading advertising for consumers, and many other aspects that fall under the overall protection of customers. For this reason, the AGCM is an entity that all companies, and particularly e-commerce businesses, must deal with and relate to, especially when it comes to terms and conditions of sale. Any irregularity identified by this Authority could lead to the suspension of the license as well as heavy administrative fines. It is therefore essential that when drafting the terms and conditions of sale for their e-commerce, reference is always made to the guidelines of the AGCM.
A very simple and quick solution, as well as effective of course, to manage this aspect is to use the services offered by Iubenda, a portal specialized in the automatic creation of sales contracts with customizable terms and conditions. There are many advantages to this strategy, as it allows for the quick and easy creation of sales contracts, choosing from many different options for clauses, all in full compliance with current regulations. Often, to address this aspect, companies, and e-commerce in particular, turn to the help of specialized lawyers. However, this solution, besides being particularly expensive, also involves very long implementation times. Thanks to Iubenda, on the other hand, e-commerce has complete autonomy in drafting its contract drafts and can choose, in addition to the clauses, also the language in which the contract should be written. The contracts are pre-set based on the work of specialized lawyers in international law and are therefore fully in line with the regulations of the European Community. A fast and convenient solution, that of Iubenda, truly accessible to everyone.
Opening an e-commerce can be the turning point needed to boost one's business, but it is important that everything is in order, especially regarding the guidelines set by the AGCM. To this end, a strategy that can help clarify the sales contracts is related to understanding whether the target audience, that is, the group of consumers, is made up of consumers or professionals. This differentiation, in fact, helps to understand what terms and conditions can be included in the sales contract, as well as which regulations these operations must adhere to. To avoid incurring heavy fines, it is essential to seek the help of experienced lawyers in the field who can assist in drafting sales conditions that comply with AGCM standards. Alternatively, to save time and money, Iubenda represents the best solution as it allows you to customize your sales contract independently, choosing from the various options provided by the platform, all of which are completely legal and carefully verified.
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Author: Loris Modena
Per Ind Loris Modena, owner of Arte e Informatica, started working in the IT sector in 1989 as a system administrator responsible for the maintenance and installation of computer systems. He began programming for the web in 1997, focusing on CGI programming in PERL and later transitioning to programming in PHP and JavaScript. During this time, he became familiar with the Open Source world and the management of Linux servers.
