Given that the transposition of EU regulations concerning consumer protection carried out by the provisions of the Civil Code is, in its current form, at the very least poor, a relatively extensive amendment thereof is being prepared at government level (hereinafter “the draft”). The overwhelming majority of EU provisions which the draft is to implement are subject to the so-called full harmonisation regime, which means that, in principle, no room for discretion is left to Member States. In view of the fact that these are regulations which should have been transposed by the Czech Republic far earlier, the proposed changes cannot be described as complete novelties. Nevertheless, it is beyond doubt that some obligations may be perceived as new by the majority of traders. We shall address these certain “new” obligations in more detail in this circular, even though the final form of the amendment is far from known at this time.
Time limit for delivery of goods
The draft contains an obligation on the trader to provide information (before conclusion of the contract) regarding the time limit for delivery of goods, whereby such pre-contractual information should also automatically become part of the contract between the trader and the consumer at all times. An express sanction for failure to comply with this obligation is the possibility for the consumer to withdraw from the contract, but only after the expiry of an additional reasonable period specified in the buyer’s notice. Also in view of the fact that, in the case of online sales, the consumer may withdraw from the contract at any time without giving reasons (until the moment of delivery of the goods), such a sanction is not problematic for internet traders. Nevertheless, this does not alter the fact that if the time limit for delivery of goods is agreed and yet is not complied with by the trader, the buyer acquires, inter alia, the right to damages.
The draft also sets a maximum time limit for delivery of goods in the sale of goods in a shop where such time limit is not expressly agreed (see above). Specifically, section 2159 of the Civil Code is, according to the draft, to provide that: “where the time for performance is not agreed, the seller shall deliver the thing to the buyer without undue delay after conclusion of the contract, but no later than thirty days from the date of its conclusion.” This would also apply to the sale of goods in brick-and-mortar establishments.
Requirements for changes to the user interface
Section 1826a(1) of the Civil Code is, according to the draft, to provide that, in the case of sale through an e-shop, certain information must be provided to the consumer again, namely immediately before the order is sent by him, evidently therefore when “clicking through the basket”. The information which is specifically to be provided by the trader at this time is as follows (in the case of sale of goods):
We believe that this requirement should perhaps not represent a significant burden for traders; nevertheless, it will certainly also depend on the current state of their user interfaces.
A further requirement is then set for the form of the order button: “The trader shall ensure that, when placing an order, the consumer expressly acknowledges that the order entails an obligation to pay. Where the order is placed by using a button or similar function, such button or similar function must be labelled in an easily legible manner ‘order with obligation to pay’ or by another corresponding unambiguous formulation.” If these requirements are not met by the trader, the consumer should not be bound by the contract at all, which would of course be capable of generating a number of contentious situations in practice.
Installation of goods and seller’s liability for defects in goods
The draft contains more detailed regulation of situations involving installation of goods. Even deficiencies in the installation instructions (including in the case of installation of goods by the buyer himself) could give rise to liability for defects on the part of the trader (as in the case of installation of goods provided directly by the trader). Specifically, section 2161(2) of the Civil Code should provide that: “the seller is also liable to the buyer for a defect caused by incorrect installation which was carried out by the seller or at his responsibility pursuant to the contract. This also applies where the installation was carried out by the buyer and the defect arose as a consequence of an error in the installation instructions.”
Special provisions on conclusion of contracts by telephone
EU directives provide, in certain cases, Member States with the possibility of derogating legal regulation in some areas. The Czech Republic would decide to make use of one of these possibilities in the event of adoption of the draft, specifically in the area of conclusion of consumer contracts by telephone. Specifically, section 1825(2) of the Civil Code should, according to the draft, limit the possibilities for the form of such contracting: “The trader shall confirm to the consumer an offer made by telephone in textual form. The contract is concluded only at the moment when the consumer signs the offer, or when he sends his consent in textual form.”
Josef Aujezdský
Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – online legal advice
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 1/2019 intended for members of this association.
This text was translated from Czech to English using an AI translator.