A frequently addressed issue in the context of the sale of goods to consumers is the question of the possibility of contractually modifying (usually within the terms and conditions) certain obligations associated with the consumer taking over goods from the carrier. The most frequently discussed are obligations connected with the inspection of delivered goods, with the provision of information to the seller, or with the obligation not to accept goods in the event of damage to the consignment. In the context of the preparation of Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the “Civil Code”), there was unfortunately an inaccurate implementation of the Directive on Consumer Rights, which makes the situation in this area not entirely clear from a legal perspective.

In general, it may be stated that Section 2104 of the Civil Code stipulates an obligation to inspect goods by the buyer, as soon as possible after the transfer of the risk of damage to the thing. This provision, in our opinion, can also be applied to legal relationships with consumers. Although it is not included within the section on the purchase of goods in a shop pursuant to Section 2158 et seq., but only in the general part regulating the purchase contract, the Act does not stipulate any deviation from this provision within the provisions of so-called consumer contracts. However, it is necessary to emphasise strongly that any failure to fulfil this obligation by the buyer does not affect the consumer’s further rights relating to defective performance. In the case of consumer relationships, the Civil Code allows the buyer to complain about a defect in goods within 24 months from the acceptance of the thing (without any limitations).

Obligations imposed on the consumer connected with taking over goods beyond the scope of the Act within the terms and conditions may be problematic from a legal perspective. In general, pursuant to Section 1813 of the Civil Code, agreements are prohibited which, contrary to the requirement of proportionality, establish a significant imbalance in the rights or obligations of the parties to the detriment of the consumer. If, therefore, certain obligations are imposed on the consumer when accepting goods, these obligations must not be disproportionate within the meaning of the above. Furthermore, the consumer’s rights arising from defective performance must not be restricted in any way, as such agreements are directly prohibited pursuant to Section 1814(a) of the Civil Code.

For example, such provisions of terms and conditions which impose on the consumer an obligation to inspect the packaging and goods before accepting them from the carrier in conjunction with a limitation of claims arising from liability for defects must therefore be regarded as prohibited agreements, as they exclude or restrict the consumer’s rights arising from defective performance.

In this context, it is also necessary to recall that the consumer is not in a contractual relationship with the carrier. If, therefore, damage to goods occurs during transport, the authorised entity for asserting rights against the tortfeasor is precisely the seller. Damage to goods during transport constitutes a breach of the purchase contract (it is not proper performance under the purchase contract) for which the seller is liable, whilst the buyer is not entitled to assert rights under the contract of carriage. In such a case, the seller’s obligation to deliver defect-free goods to the buyer persists, or to prove the contrary – that is, that the goods did not have the complained-of defects when accepted by the consumer (from the carrier). Similar cases were also addressed (still under the old legal regulation of civil law) by case law, whereby the court reached similar conclusions.

Last but not least, it is also possible to mention the output of the Czech Trade Inspection Authority under ref. no. ČOI 64254/17/0100 dated 8 December 2017. In it, the Czech Trade Inspection Authority even reached the opinion that Section 2104 of the Civil Code does not apply at all to relationships arising from purchase contracts concluded with consumers, precisely because no sanction for the consumer in terms of rights arising from defective performance can be associated with the failure to inspect goods. This position of the Czech Trade Inspection Authority is, in our opinion, too extensive, as we believe that the application of Section 2104 of the Civil Code is not excluded by any other special provision. Nevertheless, although this position of the Czech Trade Inspection Authority is not in any way binding on judicial institutions (they may view the situation differently in the future), it has its evidential value.

It can therefore be concluded that the stipulation of certain obligations on the consumer when accepting goods should not, in our opinion, be entirely excluded. However, these obligations must always be conceived as proportionate and must not establish a significant imbalance in the rights or obligations of the parties to the detriment of the consumer. From the trader’s perspective, it is advisable also to take into account the above-mentioned contrary position of the Czech Trade Inspection Authority. It is then beyond doubt that no agreements may restrict the buyer’s rights arising from defective performance, as this is expressly prohibited.

Lukáš Barnet

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

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal newsletter No. 07/2018 intended for members of this association.

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