The trouble with aggressive advertising

SOME companies are under the impression that, if you insert a disclaimer at the bottom of the ad, you are fully covered. This mistake can have very serious implications, more so considering that an ad forms part of the contract. Let us explore some examples.

1. Clause stating a ‘limitation of liability for losses sustained as a result of relying totally or partially on this product’; this clause, shocking as it may sound, was inserted in a brochure issued by a Danish bank that gave Inheritance Tax advice, and wish to now get away with it once the Spanish ‘Hacienda’ has concluded it is fraud. The fate of the clause can be explained by reference to the law on the matter:

Consumer Protection Act, Article 130: Clauses limiting or exonerating from responsibility in respect of instances of civil responsibility under this Act are not applicable and thus, inefficacious.

2. Clause ‘advertiser is not responsible for pricing errors or misprints’: This is a clause prima facie deemed abusive and therefore void. An often cited example is the woman who received a printed offer for a luxury car that, although retailed for €45,000, had a price tag of €9,000. The ruling held that the advertiser had not rectified in any form and granted the claimant the right to the car for the advertised price.

3. Clause ‘valid whilst supplies last’: this clause is only accepted in season sales or, generally, provided the consumer is able to establish the size and duration of those supplies. The aim of ruling on its illegality is to avoid a supplier’s prerogative to stop selling a product, at an attractive price, at their sole discretion.

4. Representations made on brochures: Brochures do have a contractual binding force. A Marbella-based property developer, Erasur S.L., was forced by the Supreme Court (12/7/2011) to return €205,000 to buyers who, having relied on advertised representations of sea, golf and mountain views, bought an apartment that ended up having only mountain views. The court found that the brochure was not a mere ‘invitation to negotiate’ but a contractual offer for an off-plan apartment.

5. Responsibility of editors for publishing misleading ads: In a recent ruling, multinational Hachette Filipacchi was found co-responsible of misleading advertising for hosting an ad for a miraculous slimming product later found to be deceitful (aren’t they all?). Although they were acquitted in the first instance, the courts applied article 34 of the Unfair Competition and Advertising Act 29/2009 ordering them to cease and to refrain from hosting identical advertising.