One of the issues to which we have not yet devoted closer attention in legal circulars is the legal regulation in the area of sale of goods with defects (that is, defects of which the trader knows in advance). The case of goods with defects must be distinguished from situations where used goods are offered and sold, and naturally also from situations of ordinary offering and sale of defect-free goods (if a defect manifests itself in such goods only subsequently).

The sale of goods with defects to final consumers is addressed primarily in two statutory provisions. The first of these is the provision of Section 2084 of the Civil Code (Act No. 89/2012 Coll., as amended), which establishes the so-called notification obligation of the trader: “the seller shall notify the buyer, when negotiating the contract of sale, of the defects in the thing of which he knows.” This notification obligation concerns defects of any kind and extent. The notification of the buyer is a unilateral expression of will of the seller, the form of which is not prescribed by law.

The purpose of the above-mentioned notification is, inter alia, to exclude the buyer’s rights for defects in goods of which he was notified by the seller. The fulfilment of this obligation by the trader thus has the consequence that he is not liable for defects in goods of which he duly and timely notified the buyer. The seller thus relieves himself of liability for this specific defect by notification of the defect.

In this connection, reference may be made to the decision of the Supreme Court of 29 May 1969, file No. 2 Cz 16/69, from which it follows, inter alia, that the seller’s notification may exclude rights arising from liability for defects only in the event that such notification concerns a specific defect. A general notification by the seller that the thing offered is defective is, from this perspective, insufficient. In the event that the seller notifies the buyer of the defect already upon conclusion of the contract and the buyer concludes the contract with knowledge of such defect, it is actually not possible subsequently to speak of a defect, since the characteristic in question (defect) has become a characteristic of the performance. From this it logically follows that the more extensive the information about the defects of the goods, the narrower is then the seller’s obligation arising from liability for defects.

The second provision which expressly deals with the sale of goods with defects to final consumers is Section 10(6) of the Consumer Protection Act (Act No. 634/1992 Coll., as amended). It establishes that “when selling used or modified products, products with defects … the seller must notify the consumer of these facts in advance in a clear manner. Such products must be sold separately from other products. In the establishment, in the place designated for the sale of such products, objects which do not serve for sale must not be stored.”

From the above it thus appears that, in addition to the already mentioned so-called notification obligation, a further statutory requirement is that goods with defects be offered by the trader separately from defect-free products. What exactly is meant by the third sentence of the provision in question regarding the prohibition on storage of objects not serving for sale may not be entirely clear. Nevertheless, it is beyond doubt that the sale of goods with defects should be carried out by the seller at least in a special section of the shop (whether “brick-and-mortar” or internet-based).

Josef Aujezdský

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. 11/2022 intended for members of this association.

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