The consumer’s right to have goods restored to a condition consistent with the agreement

car

In the opinion of the Regional Court in Elbląg (judgement of 15 April 2015, I Ca 68/15), allowing the seller to rely in proceedings on the defence based on the pleading of the non-existence of the claim in case the seller fails to reply to a demand from the consumer (buyer) to have the good restored to the condition stipulated by the agreement, and as a result this demand being deemed justified, would mean the limitation in exercising consumer rights. The failure to react to the consumer’s demands within the prescribed term creates the fiction of allowing the claim, which means the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of the handover thereof.

Facts of the case

On 11 March 2010, the claimant (the buyer) purchased a car from the defendant (the seller). In the course of the ordinary use of the car, there appeared a problem with the gearbox, which started to become more severe over time. On 9 August 2010, the buyer reported to the seller an – already signalled – problem with the gearbox (Request 1), in response whereto the seller, on the same day, indicated that the gearbox functioned correctly. Thus, the buyer wanted to have the car repaired under the guarantee in an authorised service centre (16 August), but the centre ascertained a mechanical failure, and so refused to carry out a guarantee repair, carrying out a payable repair instead. The centre contended that the failure was connected with ordinary use, but an expert appointed by the buyer maintained that the failure resulted from a product defect of the gearbox. The seller, in an additional letter dated 25 August, indicated that there was no basis to allow the complaint of 9 August.

In connection with the obtained expert opinion, on 8 September, the buyer submitted a complaint, demanding that the seller remove the defect on the basis of Article 8.2 of the Act on Specific Terms and Conditions of Consumer Sale and Amendments to the Civil Codeof 27 July 2002, and paid the costs of preparing the opinion (Request 2). The seller failed to assume a standpoint within 14 days from the date when the demand was presented. The buyer indicated that the seller’s failure to assume a standpoint within the statutory deadline meant – pursuant to Article 8.3 – that the buyer had accepted the demand as justified. In the opinion of the seller, the seller had already provided a reply to Request 1.

The buyer brought an action for payment of the costs of the repair and replacement of parts, as well as the costs of preparing the opinion. The District Court dismissed the action, indicating that the buyer had received a reply to the complaint dated 9 August 2010 within the statutory deadline, and with respect to this complaint the complaint presented on 8 September 2010 could not have been effective, since it was a duplication of the initial complaint.

Reasoning of the District Court

The Regional Court reversed the challenged judgement and allowed the action, indicating that the District Court had been wrong to find Request 1 to be a complaint claim initiating proceedings under Article 8 of the Act. The buyer’s visit to the seller’s service centre had simply been an attempt to establish the reasons for the faulty operation of the gearbox. In the request to have the car repaired at that time, the buyer had not presented any specific complaint claim indicating the type of claim. The specification of the performance selection with an indication of particular defects of the car (after obtaining the expert opinion) as well as indication of the legal basis of the claim was first included in the buyer’s Request 2. Thus, there was no duplication of the previous complaint, but it was a request that had constituted a presentation of a demand within the meaning of Article 8.1. In addition, the District Court had disregarded Article 4.1, pursuant to which, in the event that an inconsistency is discovered within six months of handing over the good, the inconsistency is deemed to have existed at the time of the handover.

In the opinion of the Court, the seller had failed to reply to the complaint demand within 14 days, and therefore, pursuant to Article 8.3 of the Act, it needed to be assumed that the seller considered the demand justified, and thus was statutorily obliged to satisfy the demand contained in the complaint.

The failure to react within the prescribed term to the buyer’s demands meant not only that the seller accepted the buyer’s choice as to the method of restoring the thing to the condition stipulated by the agreement, but that the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of being handed over, and that the buyer has the right to make use of any and all tools contemplated for the protection of their interest. Moreover, in this case the seller cannot waive liability, since the lack of a response creates the fiction of allowing the claim.

In the opinion of the Court, this understanding of the meaning and purpose of the formulation of Article 8.3 corresponds to the general purpose of the Act, which, pursuant to Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, is to assure a high level of consumer protection and the real and effective exercise of their rights, as well as to strengthen the consumer’s trust.

The Court indicated that this purpose should be taken into account in the interpretation of Article 8.3 of the Act, pursuant whereto if the seller who receives a demand from the buyer to have the good restored to the condition stipulated by the agreement, fails to reply to such a demand within 14 days, the demand shall be deemed justified. The purpose of the directive implemented by the discussed Act is for the Seller to observe and properly perform the agreement. The priority of the directive, and thus of the Act, is to guarantee that consumers have the right to have goods restored to the condition consistent with the agreement free of charge.

As a result, allowing a complaint under the conditions of this provision means allowing a claim in the procedural aspect and procedural consent to repair the car, excluding the possibility for the seller to rely in proceedings on the defence based on a pleading of the non-existence of the claim.

Relevance of the Charter of Fundamental Rights of the EU

Although the Court in this case did not refer to the CFREU directly, the problem recognised by the Court might be analysed with respect to Article 47 of the Charter – precisely the right to an effective judicial remedy. Allowing the seller to rely in proceedings on the defence based on the pleading of the non-existence of the claim in case the seller fails to reply to a demand from the consumer (buyer) to have the good restored to the condition stipulated by the agreement, and as a result – according to the Article 8.3 of the Act – this demand being deemed justified, would mean the limitation in exercising consumer rights. The failure to react to the consumer’s demands within the prescribed term creates the fiction of allowing the claim, which means the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of the handover thereof. Any other interpretation of this rule (Article 8.3 of the Act) would make the protection of the consumer (and the remedy in the form of the demand to restore the thing to the condition stipulated by the agreement) ineffective.

The text is an outcome of the project “Roadmap to European effective justice (RE-Jus)”, co-funded by the European Commission (JUST/2015/JTRA/AG/EJTR/8703).

Posted on by Krzysztof Riedl in Consumer Law, Contract Law, General Issues

About the author

Krzysztof Riedl
Krzysztof Riedl

Ph.D. candidate at the Department of Civil Law at the University of Warsaw, a trainee legal adviser at the Warsaw Regional Chamber of Legal Advisers, an associate at the Polish law firm and a collaborator at INPRIS Institute for Law and Society. He prepares a doctoral dissertation on natural obligations in the Polish civil law.