Stuck between consumer protection and carrier`s limited liability: the recourse gap in case of e-commerce

http://hrcak.srce.hr/index.php?show=clanak&id_clanak_jezik=232283 This paper compares seller’s liability with the carrier’s liability and, if a recourse gap exist, looks at ways how the ambit of this gap can be reduced. EU Consumer law is highly protective and mandatory, not allowing derogations from its rules. Since the entry into force of the Consumer Rights Directive 2011 the risk of any loss or damage during delivery rests upon the seller. The Consumer Sales Directive contains the remedies available to the buyer in case of loss or damage during shipment. The priority remedies are reparation or replacement of the damaged package, free of any charge. Also in case of a delay in delivery, the Directive puts the risk with the seller and entitles the buyer to terminate the contract. Even though the seller can start a recourse action against the carrier, there can be a substantial recourse gap between the seller’s liability exposure and personal damage, and the liability exposure of the carrier. European transport law, which is to a large extent equally mandatory, provides only for limited compensation in case of loss or delay. The paper makes three types of recommendations to reduce the recourse gap or at least to make it more predictable. From a practical point of view, organisational and contractual techniques that allow parties to limit the recourse gap are first suggested. As the e-commerce sector contains a large number of start-ups and micro-entrepreneurs without great legal knowledge, suggestions are also made for an EU legal intervention aimed at preventing this gap from affecting the viability of e-commerce. The EU has not intervened in carrier liability so far. However, as the EU states that “[r]ealising the internal market for online services is one of the key factors in the effort to make the European Union the most competitive and dynamic knowledge-based economy in the world”, elimination of obstacles in carriage law to the development of these online services should also be of paramount importance for the EU.status: publishe