In this legal circular, we have prepared a summary of certain legal issues related to the sale of used goods in shops (including e-shops), specifically concerning the exercise of rights arising from liability for defects in such goods. It is usual that used items show signs of wear and tear, and therefore may have some aesthetic or functional defects. For this reason, a buyer of worn items does not have the same rights arising from defective performance as a buyer of unused or unworn items. We shall also attempt to summarise the fundamental differences in the new regulation (Act No. 89/2012 Coll., the Civil Code, hereinafter “NOZ”) compared to the regulation applied in the previous Civil Code - Act No. 40/1964 Coll., the Civil Code, as amended (hereinafter “SOZ”). We recall that we addressed the interpretation of this issue under the SOZ in legal circular No. 8/2009.

According to the general regulation of rights arising from defective performance, the buyer is entitled to exercise a right arising from a defect that occurs in consumer goods within 24 months (Section 2165(1) NOZ). However, this statutory obligation arising from defective performance does not, pursuant to the provision of Section 2167(c) NOZ, apply to used items, or rather to defects in these items corresponding to the degree of use or wear and tear which the item had upon acceptance by the buyer. However, this statutory obligation arising from defective performance does apply to other defects in the goods. This regulation contained in the NOZ is therefore more favourable for consumers, since under the SOZ, in the sale of used items, the creation of liability for defects that occurred subsequently after acceptance of the item was not considered. The statutory warranty therefore did not exist for such goods and could only be provided by the seller.

The new regulation also corresponds to the regulation of the SOZ, which regulated the shortening of the period for exercising rights arising from defective performance. When purchasing used goods, the parties may agree that this period shall be shorter than the statutory period, but it must not be shorter than 12 months, otherwise this agreement of the parties shall be disregarded. However, the new regulation brings a fundamental difference in the nature of these periods. Section 626 SOZ provided that “rights arising from liability for defects… shall lapse if they were not exercised within the warranty period”. This was therefore a preclusive (forfeiture) period and the court took it into account ex officio. However, this wording was not adopted into the NOZ and now the seller must, in the event of exercise of a right arising from defective performance by the buyer after the period (statutory or contractual), raise an objection of limitation, in order for the court not to grant the buyer the right arising from defective performance.

The NOZ, like the SOZ, distinguishes two periods. We wrote about the first period above and it is the period within which the buyer is entitled to exercise a right arising from liability for defects (i.e. the complaint period). The second period relates to notification of the detected defect to the seller. The buyer must notify the seller of a defect in the item without undue delay after he discovered it or could have discovered it with sufficient care. Moreover, the buyer may notify the seller of a latent defect only within two years of delivery of the item. In order for the court not to grant a right arising from defective performance on grounds of failure to observe these periods, the seller must raise an objection that the defect was not notified in time.

The NOZ abandoned the concept of removable and irremovable defects and now distinguishes whether a defect can be regarded as a material or immaterial breach of contract. A material breach of contract is such a breach of obligation of which the party breaching the contract already knew or must have known at the time of conclusion of the contract that the other party would not have concluded the contract if it had foreseen this breach (Section 2002 NOZ). If a defect constitutes a material breach of contract, the buyer must, when notifying the seller of the defect, choose which right arising from liability for defects he is exercising ((i) removal of the defect by delivery of a new item without defects or delivery of the missing item, (ii) removal of the defect by repair of the item, (iii) a reasonable reduction in the purchase price, (iv) withdrawal from the contract) (Section 2106 NOZ). If he fails to do so, he may only exercise rights arising from a defect that constitutes an immaterial breach of contract pursuant to Section 2107 NOZ, that is (i) removal of the defect, (ii) a reasonable reduction in the purchase price.

In conclusion, it can be summarised that the legal regulation of the NOZ on liability for defects in the sale of used goods has adopted to a considerable extent the concept of the previous legal regulation, but tendencies to increasingly protect consumers in such sales are evident from it.

Kamil Žylka

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advisory service

This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 8/2015 intended for members of this association.

This text was translated from Czech to English using an AI translator.