In this legal circular, we shall briefly address the changes in the regulation of conformity with and non-conformity to the contract of sale in the new Civil Code (hereinafter referred to as the “NCC”).

As regards the legal regulation of conformity with the contract of sale (newly referred to as quality at acceptance), it fundamentally remains unchanged and reflects the existing regulation in Section 616 et seq. of the current Civil Code. The regulation in this area is based on Article 2 of Directive 1999/44/EC of the European Parliament and of the Council on certain aspects of the sale of consumer goods and associated guarantees. Although the new regulation in Section 2161 et seq. of the NCC does not literally speak of “conformity with the contract of sale”, in terms of meaning the regulation is practically identical. In both regulations, the seller is liable to the buyer that the thing has no defects at acceptance and that it has the agreed, described or expected properties, quality, corresponding quantity, measure or weight at acceptance, corresponds to the purpose of use, etc. Likewise, both regulations establish a rebuttable presumption that the thing was defective already at acceptance if the defect manifests itself within 6 months of acceptance.

The omission of the legislative abbreviation introduced in Section 616(3) of the current Civil Code led to intensive public discussion as to whether the NCC abolishes the two-year statutory warranty for defects in goods purchased in a shop or not. According to the existing regulation pursuant to Section 619(1) of the current Civil Code, “… the seller is liable for defects which manifest themselves as non-conformity with the contract of sale after acceptance of the thing during the warranty period (warranty).” Section 2100(1) of the NCC then generally provides that “the buyer’s right arising from defective performance is established by a defect which the thing has at the passing of the risk of damage to the buyer, even if it manifests itself only later” and that “the buyer’s right is also established by a defect arising later which the seller caused by breaching his obligation.” Under the existing regulation, therefore, it was sufficient for the buyer to prove that the thing is not in conformity with the contract of sale. By contrast, under the new regulation, the buyer will have to prove that the thing had a defect already at the moment of purchase, or that the defect arose due to a breach of the seller’s obligation, even if it manifested itself later. For our part, we are rather inclined to the view that the institute of statutory warranty has not been incorporated into the new Civil Code. Nevertheless, we would certainly recommend caution to traders in this area, as the practical impacts on everyday practice will not be as significant as might appear at first sight. Moreover, the warranty has been extended to those cases where “on the thing sold, on its packaging, in the instructions attached to the thing or in advertising in accordance with other legal regulations, a period is stated during which the thing can be used…” (Section 2165(2) of the new Civil Code). Likewise, the possibility of providing a warranty by contract or by unilateral declaration of the seller (or another person) remains unchanged.

With regard to the buyer’s claim in the event of non-conformity of the thing with the contract of sale, changes are also taking place. According to Section 616(3) of the current Civil Code, the buyer has the right to have the seller replace or repair the thing free of charge and without undue delay, and if such a procedure is not possible, the buyer may demand a reasonable discount or withdraw from the contract. The NCC corrects this in Section 2169, whereby in the event that the thing does not have properties fulfilling the quality at acceptance (Section 2161 NCC), the buyer may demand delivery of another thing only if this is not disproportionate having regard to the nature of the thing. Similarly, if the defect concerns only a component of the thing, the buyer may demand only the replacement of that component. In cases where this is disproportionate having regard to the nature of the defect, in particular if the defect can be removed without undue delay, the buyer has the right to free removal of the defect.

The buyer’s option to demand a discount from the purchase price is also regulated differently. According to Section 2169(3) of the NCC, the buyer has the right to demand a reasonable discount instead of any other claim mentioned above. The option to demand a discount may be utilised from the buyer’s perspective, for example, in those cases where the buyer does not wish to wait for a repair arranged by the seller and is able to repair the thing himself, with the proviso that he will be provided with a reasonable discount.

Barbora Chvalinová

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 circular No. 11/2013 intended for members of this association.

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