Within the scope of this circular, we shall address the issue of non-conformity of goods sold with the contract of sale upon their acceptance by the buyer. The fundamental legal regulation governing this issue is Act No. 40/1964 Coll., the Civil Code, as amended (hereinafter referred to as “the Civil Code”).

The Civil Code, in the provisions of Section 616 and Section 619, distinguishes between a situation where the goods sold are not in conformity with the contract of sale already upon acceptance of the goods by the buyer and a situation where the non-conformity of the goods sold with the contract of sale manifests itself after acceptance of the goods by the buyer during the warranty period – this situation the Civil Code designates as liability for defects in the goods sold. In the article, we shall address the first situation - that is, the non-conformity of the goods sold with the contract of sale, which exists already upon acceptance of the goods by the buyer. Cases where the goods are not in conformity with the contract of sale in the period after acceptance of the goods by the buyer shall be addressed in one of the future legal circulars.

First, it is appropriate to explain what the Civil Code regards as so-called non-conformity with the contract of sale. The Civil Code, in the provision of Section 616(3), defines this non-conformity as a situation where the goods sold do not have the quality and characteristics required by the contract, described by the seller or manufacturer, but also those which are expected on the basis of advertising, or the quality and utility characteristics usual for goods of such type, do not comply with the requirements of legal regulations, are in an inappropriate quantity, measure, weight, do not correspond to the purpose which the seller states for the use of the goods or for which the goods are commonly used. The liability of the seller for non-conformity of the goods sold with the contract of sale is based on the so-called objective principle, which means that for its formation the Civil Code does not require fault on the part of the seller and the seller cannot be released from it by alleging that the defect arose, for example, already at the manufacturer’s or by accident before delivery of the goods, etc.

In the event that the goods are not in conformity with the contract of sale upon acceptance by the buyer, the buyer has the right to choose between several options established by law as to how to proceed in this situation. It must be emphasised that it is the buyer who has the right to choose, not the seller. The primary manner in which the Civil Code enables the non-conformity with the contract of sale to be remedied is the buyer’s right to require the seller to replace the goods or repair them, free of charge and without undue delay. Only if it is not possible to remedy the non-conformity with the contract of sale by this procedure is the buyer entitled to require a reasonable reduction in the price of the goods or to withdraw from the contract. This does not apply if the buyer knew about the non-conformity with the contract of sale before acceptance of the goods or caused it himself.

The Civil Code, for distinguishing whether the goods sold were in non-conformity with the contract of sale already upon acceptance of the goods, or only after acceptance of the goods by the buyer, establishes a rebuttable presumption that non-conformity which manifests itself within six months from acceptance of the goods is deemed to be non-conformity existing upon its acceptance, unless this is contrary to the nature of the goods or the contrary is proved.

The seller is liable for defects in the goods sold which manifest themselves after acceptance of the goods by the buyer during the warranty period established by the Civil Code in Section 620 for consumer goods at 24 months. The formation of this liability is not affected by whether the buyer presented a warranty certificate, since the warranty arises directly from the law. This corresponds to the fact that the obligation to issue a warranty certificate is conditional upon the buyer’s request and is not therefore an obligation of the seller to issue a warranty certificate for every goods sold.

Liability for defects in the goods sold is borne by the seller from whom the goods were purchased and with him, unless otherwise stated in the warranty certificate, the buyer is entitled to exercise rights arising from liability for defects during the warranty period (hereinafter referred to as “complaint”). If the Civil Code provides the possibility of choosing between several rights when settling a complaint, then the choice of the right which is to be exercised within the complaint belongs to the buyer.

For the content of the obligation which arises for the seller from liability for defects in the goods sold, the nature of the defect which has arisen is decisive. The Civil Code distinguishes between removable defects and irremovable defects. An irremovable defect is one which makes it impossible to repair the goods properly, and furthermore, such a defect which is, although removable, but was not removed by the seller in time is also considered irremovable. The basic right of the buyer in the case of removable defects is the right to require removal of the defect, which must be carried out free of charge, in time and properly. Instead of removal of the defect, the buyer may require replacement of the goods or their component, on condition that this method would not be disproportionate having regard to the nature of the defect. Replacement may also be required for goods which have already been used by the buyer before the complaint was made. In the case of a removable defect, the buyer may therefore choose between requiring removal of the defect or replacement of the goods subject to fulfilment of the above-stated condition. Only if such a procedure were not possible may the buyer request a reasonable reduction in the price of the goods or withdraw from the contract.

In the case of irremovable defects, the nature of the defect is decisive, since a distinction is made as to whether the defect prevents the goods from being able to be properly used as goods without a defect, or whether it is an irremovable defect which, however, does not prevent proper use of the goods. If an irremovable defect preventing proper use of the goods appears on the goods during the warranty period, the buyer has the right to replacement of the goods or has the right to withdraw from the contract. If an irremovable defect which does not prevent proper use of the goods appears on the goods during the warranty period, the buyer has the right to replacement of the goods or a reasonable reduction in the price of the goods, or may withdraw from the contract.

Another type of defects are removable defects which appear on the goods sold repeatedly after repair, or if the goods have multiple defects, on condition that these defects make it impossible to use the goods properly. A repeated occurrence of a defect occurs where the defect reappears on the goods although it has already been removed twice during the warranty period. A repeated occurrence of a defect only occurs when the same defect reappears, not a different defect not previously removed. A greater number of defects is deemed to be a situation where the goods, at the time of making a complaint to the seller, have a minimum of three removable defects. In these cases, the buyer may require the seller to replace the goods or has the right to withdraw from the contract.

For completeness, let us add that the seller has the obligation to decide on a complaint immediately, in complex cases within three working days, and settlement of the complaint must be carried out, including removal of the defect, without undue delay, at the latest within 30 days from the date of making the complaint, unless a longer period has been agreed.

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the civic association Association for Electronic Commerce (APEK) as legal circular No. 9/2011 and 10/2011 intended for members of this association.

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