1. Is the seller always responsible for defective goods?
The responsibility for goods defects is based on so-called principle of legal warranty, which includes the responsibility of the seller to give to the buyer goods, which correspond with the applicable purchase agreement. It is understood that the sold goods comply with the purchase agreement if they are free of defects, if they comply with applicable quality standards, if they may be used for the intended purpose, as described and required by the purchase agreement, the seller or by his representative, or by applicable commercial advertisement, or if such goods possess properties that are expected from similar type of goods, if they comply with applicable legal regulations, if they contain all applicable amounts, parts, weights or volumes and if they may be used for the applicable purposes, described and specified by the seller, or for similar purposes as other or similar types of goods.
The description and scope of the responsibility for defects, which are in conflict with the purchase agreement, varies according to the fact, whether the sold item was new or used, whether the new item was sold with the defects and therefore the price was decreased accordingly and finally, whether the sold goods are considered easily perishable items.
1. If the sold item was new, the seller is responsible for all defects, which are in conflict with the purchase agreement and which were discovered within the warranty time period. The length of the warranty period has been described by Rule No. 620. Starting on January 1, 2003, this warranty period for consumer goods shall be 24 months. If specified in applicable contract, the length of the warranty may be extended above the legally established limit of 24 months.
2. If the purchase price was decreased:
The seller shall not be responsible for defects, which caused the seller to lower the price (Rule No. 619, Item 2 of the Civil Code), if the sale was done in accordance with Rule No. 618 of the Civil Code (the seller may sell items with flaws or defects, which do not prevent the consumer from using the goods for the intended and original purpose). The seller is obligated to sell such items for lower prices than for prices he would sell these items if they had no flaws. However, the seller is obligated to notify the customer about the fact that the goods are defective or have flaws and he shall explain what kind or defects or flaws the goods have, if it is not clear from the nature of the sale. It is clear from the nature of the sale that the goods have defects, if the store or the store department is properly marked. However, in any case, the seller shall notify and explain to the consumer what kinds of defects the goods have. The invoice or purchase agreement relevant to the sale of defective or used goods, which usability or value is somehow limited and decreased, must include a brief description of the defects - see the Rule No. 16, law No. 634 /1992 Coll., the Consumer right protection law. If the purchase price was decreased due to the defect, the seller shall not be responsible for the defect. However, if the seller fails to comply with all his obligations or even if he did not comply with only one obligation, he shall be fully responsible for all defects of the sold item.
Due to the length of the warranty that applies mainly to the consumer type of goods and due to the fact that the warranty may be extended, the Rule No. 619 Item 2 of the Civil Code explicitly specifies that seller and the warranty shall not cover defects or regular wear and tear due to regular use of the item; that applies to all items.
3. If a used item is sold the seller is not responsible for defects or flaws that may occur after the item was sold. Warranty shall not cover used items. The seller shall be responsible only for defects that already existed at the time of the sale. If defects appear later, a so-called preclusive time period should apply. During this preclusive time period, the buyer may claim his right to file a complaint (Rule No. 626, Item 3 of the Civil Code). As far as used items are concerned, the responsibility of the seller for defects shall automatically cease to exist if claim was not filed within 24 months from the date of the sale. Based on an agreement between the seller and the consumer/buyer, the seller has the right to shorten this warranty period; however this time period shall not be shortened below 12 months; this time period shall be included by the seller on the sale invoice/contract.
4. If the price was lowered down below the usual sales price due to closeout sales or after-the-season sales events, the important issue is whether the sold item was new or not; the seller is fully responsible for these defects.
2. What different types of warranty policies are available? Can a different type of warranty be negotiated between the seller and the buyer?
The law separates between legal (mandatory) warranty and contractual (negotiated) warranty.
The legal warranty is described by Rule No. 620 of the Civil Code;
If consumer goods are sold, the warranty period represents 24 months; if food related items are of sold, the warranty period represents eight days. If animal feeds are sold, the warranty period represents six weeks. If the sold item (for example medical drugs or food), bears ”use before date”(the expiration date), on its packaging or if such date is included in the attached manual in accordance with Rule No. 110/1997 Coll., describing regulations relevant to foods and tobacco products, the warranty period shall cease to exist on this date. That means that the warranty period may be extended by this expiration date but not shortened.
In accordance with special regulations, goods that are manufactured and intended for long-term use (such as cars, TV sets, washing machines) may carry extended warranty, as described above. However, the extended warranty may apply only to selected parts.
Warranty time period described by the applicable law may not be shortened by the seller or by the buyer, if may only be extended.
See the answer for question number 1.
The contractual warranty issued by the seller and specified on warranty card or warranty document, may cover the product for longer time period than it is required by the legal warranty; the applicable warranty policy shall specify the actual scope and conditions of the warranty policy; this is represented by legal act done by the seller only.
Warranty above the scope of the legal warranty may be offered by the seller, if both the buyer and the seller agree.
Note: Contrary to Rule No. 619, the Commercial Code does not specify legal warranty policy offered by the seller (that is the automatic coverage as described by the applicable law). It specifies only warranty policies covering products due to the actual existence of a sale contract.
3. What is the difference between the responsibility for damages and for responsibility for defects?
Responsibility for defects:
This responsibility is specified by Rule No. 616, 619, 620, 622, 623, 626, 627 of the Civil Code. Rule No. 616 describes the seller responsibility for conditions or status of the sold item at the time of the actual sale.
The responsibility for defects of sold items applies to the seller, as the seller represents one contractual party, however, it is rather objective in nature. The responsibility of the seller for a conflict with a purchase agreement does not require the seller to cause the actual defect. The seller is not exonerated from this responsibility even if he has a document confirming that the product defect was caused by the manufacturer of the product, the shipper, or if the defect was caused by incorrect storage or even by an accident that happened before the product was accepted.
The responsibility for defects applies only if valid purchase agreement has been concluded. If the purchase agreement was not properly concluded, then the buyer may not claim his right to have the sold item repaired or exchanged, or to require lower price, or he may not withdraw from the purchase agreement. In such scenario, the relationship would be governed by applicable law, describing regulations relevant to so-called unjustified enrichment.
Responsibility for items sold in a store, which are in conflict with the purchase agreement, is described in Rule No. 619 – 627 of the Civil Code. Should some issue not be included and covered by this regulations, then generally accepted rules, applicable to responsibility for damages due to conflict with purchase agreement (Rule No. 595 - 600 of the Civil Code) shall apply, or possibly Rule No. 499 - 510 of the Civil Code, describing responsibilities for defects in obligatory legal relations. Responsibility of the seller described in Rule No. 619 - 627 may not be excluded by an agreement between both participating parties. It may be only extended by the applicable agreement or by applicable legal act of the seller.
Responsibility for damages:
Claiming rights for damages (by the buyer) does not exclude the right of the buyer/consumer to be reimbursed for damages that occurred due to the existence of the applicable defect (Rule No. 510 of the Civil Code). Not only the responsibility of the seller shall apply (Rule No. 420 of the Civil Code) but also the manufacturer responsibility may apply, providing that certain conditions have been met, as described by Rule No. 59/1998 Coll., describing the responsibility for damages caused by defective product. This represents an objective responsibility of the manufacturer, importer or the distributor for damages that affected consumer health, caused consumer death or damages relevant to other properties other than the defective product.
4. May a defect be accepted as valid even if the buyer did not examine the product thoroughly at the time of sale?
The buyer has the right to request the seller to present the product and its functionality before him, if the nature of the sale allows such presentation (see Rule No. 15 the Consumer right protection law). The purpose of this law is, to give the buyer a chance to inspect and try the product, to see if the product is exactly what he needs, if it complies with his quality requirements, if it is damaged, if it has all required accessories and to examine its function and efficiency and to make sure that he will be able to use and control the product without damaging it. This may eliminate the future needs to claim rights and responsibility for product defects. This process of examination is important as it may help in the future to determine, whether possible defects were caused due to incorrect product use or handling by the buyer.
The above statement shall not affect the right of the buyer to claim defective products. The seller is responsible for making sure that the sold item complies with the applicable purchase agreement and that it is without defects.
Should the buyer claim his rights relevant to the defective product, it is up to the seller, whether he accepts or rejects the claim. The seller may reject the claim only if he is not responsible for the defect or if he is not responsible for the conflict with applicable purchase agreement, or if such claim may not be classified as a defect or conflict with the purchase agreement.
5. If the purchased goods are delivered to the buyer with damages, who is responsible for the damages?
The responsibility for conditions or status of the sold item at the time of the goods or item acceptance is described in Rule No. 616 of the Civil Code. The seller is responsible for making sure that the sold item complies with the applicable purchase agreement and that it is without defects at the time of the goods acceptance. The seller responsibility is an objective responsibility. The seller is responsible for complying with his responsibilities, such as making sure that the quality, amounts, volumes, weight or size of the items comply with the requirements, even if he does not have sufficient influence over such issues. It is not important whether the defect was caused by the manufacturer, the shipper or by the seller. The seller is responsible for defects regardless of the fact if he knew about the defects or if he could have discovered the defects or not.
6. Is there a difference between the responsibility for defects described in the Commercial Code and in the Civil Code? What a businessman should follow?
Law No. 513/1991 Coll., of the Commercial Code describes, besides other issues, also relations between businessmen, if, after taking all relevant circumstances into consideration is evident that these relations are connected with their business activities. Agreements between these parties that are not specified in the heading No. II of the third law and are described as a contractual issue by the Civil Code, are governed by regulations relevant to this type of contractual agreement, included in the Civil Code and in the Commercial Code.
Both parties may agree that their contractual relationship, which does not belong into the category of relations as described in Rule No. 261 (that is relations between the seller /businessman and consumer), will be governed by this law. This agreement must be done in writing. If such agreement worsens the status of one of the contractual parties, which is not classified as a businessman, it shall be deemed invalid.
Relations described in Rule No. 261 (that is relations between two businessmen) or relations that are subject to the Commercial Code due to the concluded agreement described above (unless this law or other special legal regulations states otherwise) shall be governed by the third part of the Commercial Code . However, regulations described in the Civil Code or by other special rules, relevant to consumer contracts or adhesion contracts, which may abuse applicable provisions and regulations protecting the consumer must always be applied, if a party that is not a businessman would benefit from such action. The contractual party, which is not a businessman, shall be responsible for not complying with its and mutual obligations in connection with such relationship, as described by the Civil Code.