Given that the transposition of EU legislation 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 referred to as the “draft”). The overwhelming majority of EU provisions which the draft is intended to implement are subject to so-called full harmonisation, which means that Member States are, in principle, left with no room for discretion. In view of the fact that these are regulations which should have been transposed by the Czech Republic much earlier, the proposed changes cannot be described as complete novelties. Nevertheless, it is beyond doubt that some obligations may be perceived by most traders as new. We shall focus in more detail on these certain “new” obligations in this circular, even though the final form of the amendment is at this point far from known.
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, and this pre-contractual information should also automatically always become part of the contract between the trader and the consumer. An express sanction for failure to comply with this obligation is the possibility for the consumer to withdraw from the contract, but only after expiry of an additional reasonable period stated in the buyer’s notice. Also in view of the fact that in the case of on-line 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 not observed by the trader, the buyer is entitled, inter alia, to compensation for damage.
The draft also establishes a maximum time limit for delivery of goods in the case of 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 not 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 modification of user interface
Section 1826a(1) of the Civil Code is, according to the draft, to provide that certain information must, in the case of sale through an e-shop, be provided to the consumer again, specifically just before the order is sent by him, presumably therefore when “clicking through the basket”. The information which is at this moment specifically to be provided by the trader is as follows (in the case of sale of goods):
We believe that this requirement should perhaps not represent a significantly greater burden for traders; nevertheless, it will certainly depend also on the current state of their user interfaces.
A further requirement is then established 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, this 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.
Assembly of goods and seller’s liability for defects in goods
The draft contains more detailed regulation of situations involving assembly of goods. Even deficiencies in the installation instructions (including in the case of assembly of goods by the buyer himself) could give rise to liability for defects on the part of the trader (in the same way as in the case of assembly 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 assembly which was carried out by the seller or on his responsibility according to the contract. This also applies in a case where the assembly was carried out by the buyer and the defect arose in consequence of an error in the assembly instructions.”
Special provisions on conclusion of contracts by telephone
EU Directives provide in certain cases to Member States the possibility of derogating legislation in certain areas. The Czech Republic would, in the event of adoption of the draft, decide to avail itself of one of these possibilities, specifically in the area of conclusion of consumer contracts by telephone. Specifically, Section 1825(2) of the Civil Code should, according to the draft, restrict the possibilities of 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
Mašek, Kočí, Aujezdský Law Office www.e-Advokacie.cz – on-line legal advice
This text was originally prepared by Mašek, Kočí, Aujezdský Law Office 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.