In the previous article, we examined the liabilities of manufacturer’s warranty for faultless operation of goods. In this article, we will focus on consumer sales. In the upcoming article, we will determine the potential (non)applicability of the institute of liability for defects and faultless operation warranty, specifically directly to the examined Dieselgate affair.
The Consumer Protection Act (ZVPot) regulates the rights of consumers in offering, selling and other forms of marketing of goods and services by companies, and defines the duties of state bodies and other entities to guarantee these rights. This Act defines the consumer as a natural person, who obtains or uses goods or services for the purposes outside their professional or gainful occupation. Under this law, a company is a legal or natural person engaged in a gainful occupation, regardless of its legal form or ownership. Company’s obligations under this law refer also to institutions and other organisations or other natural persons that provide goods and services to consumers. Rights of the consumer under this law are without prejudice to their rights under general regulation on contractual obligations. Consumer rights under this law can not be limited or excluded by a contract. This law transposes numerous EU directives into the legal order of the Republic of Slovenia.
The Consumer Protection Act includes certain special (lex specialis) provisions related to material error warranty by sellers and warranty for faultless operation by manufacturers and sellers (in terms of the topic discussed, it is an important fact that numerous injured parties are consumers), specifically:
• The consumer may exercise their rights due to a (latent) material error if they inform the seller of the error within two months of the date when the error was discovered (the general deadline under the Obligations Code is 8 days and immediately for commercial contracts), whereby the consumer can inform the seller of the defect in person, whereby the seller must issue a certificate, or send the goods to the store where they were bought, or to the representative of the seller with whom the contract was concluded.
• The consumer has a longer warranty period, specifically two years for a purchase of new goods and one year for a purchase of used goods (the general warranty period under the Obligations Code is six months).
• The consumer has the option (adding: complete) alternative choice of requests due to material error warranty, specifically: the consumer can request that the seller eliminates the error on the goods or return part of the paid amount, in proportion to the error, or replace the defective goods with new, faultless goods, or return the paid amount. In any case, the consumer is also entitled to demand compensation for damages from the seller, and particularly reimbursement of the costs of material, replacement parts, work, transfer and transport of goods, arising from fulfilment of obligation related to the above requests.
• The rights of the consumer extinguish two years from the date the seller was notified of the material error (the general preclusion period under the Obligations Code is one year).
• No contractual provision can limit or exclude the seller’s liability for material errors – as stipulated by law, and contractual provision in conflict with the above is null and void.
• If the existence of the error on the goods or the irregularity in the service rendered is not disputed, the company must fulfil the consumer’s request as soon as possible, and no later than within eight days. The company must reply to the consumer’s request in writing within eight days of receipt if the existence of the error on the goods or the irregularity in the service rendered is disputed.
• Persons who are not considered consumers under this law are also entitled to warranty rights.
• The institute of obligatory guarantee is implemented (the Obligations Code defines only the so-called voluntary guarantee).
• The warranty certificate must be easily understandable for the consumer. When the product is intended for sale in the territory of the Republic of Slovenia, the warranty certificate must be written in Slovene, on paper or other durable medium, which is easily accessible to the consumer. The warrantor has all obligations under the law, even if the warranty certificate does not contain all data specified by this law or is not issued in accordance with the above.
• For goods that are subject to obligatory guarantee, the manufacturer must provide to the consumer, in addition to the warranty certificate, instructions on assembly and use, and a list of authorised repairers; provide a repairer authorised by the manufacturer for carrying out repair work on products and with a concluded contract with the manufacturer for the supply of replacement parts, unless it performs this activity itself; provide free rectification of errors within the warranty period; provide repair, goods maintenance, replacement parts and attachment devices against payment for at least three years after the expiry of the warranty period, by carrying out services itself or by having a concluded contract with a third party; if the manufacturer fails to provide to the consumer the instructions on use and a list of authorised repairer, the seller is obligated to hand them over to the consumer upon conclusion of the sales contract.
• The errors must be rectified within 45 days of the day when the manufacturer, seller or authorised repairer received the request for rectification of error from the consumer, otherwise the manufacturer must replace the consumer’s goods with identical, new and faultless goods free of charge.
• During the time of repair of goods for which an obligatory guarantee was issued, the manufacturer or authorised repairer can provide free use of similar product. If the manufacturer fails to provide a temporary replacement product for the consumer, the consumer is entitled to claim damages incurred for not being able to use the product, from the time the consumer requested repair or replacement until it was completed. Material costs, replacement costs, work, transfer and transport of products, arising from rectification of error or replacement of goods with new goods are borne by the manufacturer.
• The rights of the consumer under this article extinguish two years after the day the consumer requested free rectification of errors or replacement of goods with new goods (the general preclusion period under the Obligations Code is one year).
Here, we have to emphasise the special provisions of the Directive on some aspects of sale of consumer goods and related warranties. According to the Directive, the consumer can request proportionate decrease of purchasing price or withdrawal from contract, if the consumer is not entitled to a repair or replacement, if the seller did not use the means within a reasonable period, or if the seller did not use the means without significant inconveniences for the consumer. The consumer is not entitled to withdraw from the contract if the non-conformity is insignificant. Unlike ZVPot, the Directive therefore primarily prescribes specific performance and, as an alternative, withdrawal from contract and decreased purchasing price. The consumer can first request a free repair or free replacement of goods from the seller, unless this is impossible or disproportionate. A means is considered disproportionate if it causes unacceptable costs to the seller compared to other means, considering the following: the value of the goods in full compliance, the significance of incompliance with the contract, and whether or not the consumer could use another means without significant inconveniences. Every repair or replacement must be carried out within a reasonable time and without significant inconveniences for the consumer, considering the type of goods and the purpose for which the consumer requested the goods.
Source: Pravni vidiki afere Dieselgate [Legal Aspects of Dieselgate] (master’s thesis), 2016, Damjan Merhar