Ms. VO Thi Thanh Linh is a PhD candidate at the University of Law, HCMC where she got an LLM. She is a lecturer at Da Lat University. Her research interests are advertisement law and consumer protection law.
Conceptualizing the right to withdraw in distance contracts in Vietnam – a discourse of pacta sunt servanda with Eastern characteristics
Abstract:
The increasing commonality of distance selling has raised concerns about the protection of the interests of consumers. Since 1997, the European Union has taken a bold step in consumer protection by introducing Directive 97/7/EC. The Directive consists of numerous measures aiming at tackling different issues, including the introduction of the right to withdraw from distance contracts. This raised concerns and controversies about whether the deep-seated principle of contract law – ‘Pacta sunt servanda’ – has to be redefined, whether this may result in the reconstruction, or at least, reconciliation of contract law; whether these changes are advantageous rather than absurd, and counterintuitive; whether the compulsory requirement to incorporate the right to withdraw in contracts restrict the freedom of private entities. To answer such questions, addressing the right’s substance is required but insufficient; in equal need is to address these in a societal context. This paper proposes to address the demand for conceptualizing and incorporating the right to withdraw into the Vietnamese legal system by examining its foundational rationale and nature and surrounded debates, and approaching this right from a Vietnamese perspective, e.g., Confucianism accounts, the Vietnamese psychological mindset, the contemporary Vietnamese societal reality. This paper suggests (i) imperatives such as humanity – nhân – ren and righteousness – tín – xin rooted in Asian traditions find equivalent to the concept of good-faith and the principle pacta sunt servanda; (ii) the inherently suspicious and non-litigious psychology of Vietnamese should motivate the introduction of the right in Vietnamese law; (iii) nevertheless, this intervention should be at the minimum and accessory as it would be more advantageous if the parties voluntarily practice nhân and tín and strive to maintain the relationship – quan hệ – guanxi. Doing such would conciliate deep-seated values and principles with the need to protect consumers.