§1.4 Mixed purpose contracts

Article 2 (5) ‘sales contract’ means any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, including any contract having as its object both goods and services; (6) ‘service contract’ means any contract other than a sales contract under which the trader supplies or undertakes to supply a service, including a digital service, to the consumer; In practice, many contracts concluded between traders and consumers, to which the Directive applies, contain elements of both services and goods. In these cases, the last part of the definition under Article 2(5) is relevant since it defines a sales contract also as ‘any contract having as its object both goods and services’. According to the definition under Article 2(5), the criterion for classifying a contract as a ‘sales contract’ is the transfer of the ownership of goods to the consumer. Therefore, if a contract’s main purpose is the transfer of ownership of certain goods, it should be classified as a sales contract even if it also covers related services provided by the seller, such as installation, maintenance or any other processing, irrespective of the relative value of the goods and services. Examples of contracts that cover both goods and services and should usually be considered as sales contracts because of their main purpose: — the purchase of a new kitchen set, including its installation at the consumer’s apartment; — the purchase of specific construction elements, such as windows and doors, including their installation in the consumer’s house; — the purchase of a mobile smartphone bundled with a subscription to an electronic communications service. In contrast, if the transfer of the ownership of specific goods is not the main purpose of the mixed contract, the contract should not be considered a sales contract. Examples of contracts that cover both services and goods that should be classified as service contracts because of their main purpose: — a contract for the repair, renovation and construction of an annex to a building (see Recital 26); — a contract for attending a lecture, including delivery of pens and folders to the participants; — a contract for a training course, including delivery of a course book for each participant. This interpretation is supported by well-established case-law of the CJEU on the free movement of goods and the freedom to provide services, which remains pertinent also in the context of this Directive. For example, in case C-20/03 Marcel Burmanjer the Court stated that an economic activity should be examined in the context of either the free movement of goods or the freedom to provide services if one of these elements ‘is entirely secondary in relation to the other and may be considered together with it’ (18). This also means that a mixed contract should be considered as sales contract if facts show that its actual purpose is the transfer of the ownership of goods: — For example, if the sale of the course book had a particularly prominent place in the trader’s offer for a training course and in communication between the parties, and if this course book had significant relative value compared to the overall price of the training, the contract may be classified as a sales contract rather than a service contract for the purposes of the Directive. On the other hand, even where a mixed contract results in the production of something in a tangible form, it should be considered as a service contract as long as the subject matter of the contract is an intellectual or skilled service and the subsequent delivery has only ancillary function (19): — For example, the contract with an architect to design a house and the contract with a lawyer to prepare and file a lawsuit are both service contracts, even though at the end there is a tangible result (e.g. construction blueprints, a claim, or an application). Similarly, the contract with an artist to draw a painting and the contract with a photographer for a wedding photo session are service contracts. In a nutshell, each mixed contract should be classified based on its real main purpose. The fact that the contract may include an option to enter into subsequent agreements should not per se change its characteristics. For example: — If a contract for the rental of goods only includes an option to transfer ownership, not an obligation, it should be classified as a service contract for the purposes of the Directive. Classifying a contract as either a sales or a service contract determines how the withdrawal period is calculated (Article 9). For service contracts, the 14-day withdrawal period starts running from the conclusion of the contract. For sales contracts, the withdrawal period only starts running after the goods are received. In addition, some of the Directive’s provisions, such as Articled 18 and 20 on delivery and the passing of risk, only apply to sales contracts. The same sales or service contract may also cover services that are not governed by the Directive. For example, a sales or service contract may make it possible to pay the price in instalments at a certain interest rate. Such a contract would also be subject to the specific rules governing consumer financial services (20). The rules on ancillary contracts in Article 15 of the Directive would apply by analogy (see section 5.10).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07