Consumer Sales and Guarantees Directive, Article 3 Consumer Sales and Guarantees Directive, Article 4 Consumer Sales and Guarantees Directive, Article 4

A defect, meaning a deviation from what the consumer would reasonably expect from a specific product, becoming apparent within six months from the time of delivery is presumed to have existed at the time of delivery.

The plaintiff bought a car from the defendant in July 2014. In the contract, there was a term stating that there are “no guarantees/claims with regards to the vehicle’s existent and future defects”. The plaintiff, after an unrelated inspection of the car in January 2015 discovered some defects related to the car’s parking brake. He, therefore, sent a complaint to the defendant. Since the defendant did not reply, the plaintiff reported the defendant to the National Board for Consumer Disputes (ARN). The ARN found that the plaintiff had a valid claim. The plaintiff filed, therefore, a claim against the defendant at the first instance court.

The first instance court found firstly that the Consumer Sales Act should apply since it is a consumer-related dispute. Since the complaint was filed the last day of the six months period from the day of delivery, it is presumed that the defect already existed at the time when the car was sold according to 20a§ Consumer Sales Act. However, after taking into consideration all circumstances, such as that the car was second-hand, that the plaintiff had already done more than 22.000 km with the car as well as that it was after half a year when the defect was detected for the first time, the court stated that it is no longer presumed that the car was not in conformity. The plaintiff should, therefore, prove that the defect existed from the beginning, something that he did not manage to do in front of the court.

The plaintiff appealed the ruling.

When is a trader liable for faults or defects found in a product?

The Court of Appeal stated that a product is defective if it deviates from what the consumer would reasonably expect. This includes also situations where the product is sold “as such”. In the case at hand, the defect was of such importance that the plaintiff should refrain from using the car for as long as it was not fixed. Moreover, the contract did not specify in which cases the defendant would not be liable for the condition of the car or that the car was sold at a reduced price. The court, therefore, concluded that the car was in a worse condition than the one that the plaintiff would reasonably expect and therefore in lack of conformity. Additionally, a consumer does not have an obligation to examine a product before purchasing it. Lastly, the presumption can be broken if the trader can prove that the defect did not exist at the time of purchase. Since the defendant did not manage to do that the defect is presumed to exist from the time of delivery and the plaintiff has the right for compensation.

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The Court of Appeal changed the ruling of the court of first instance.