Jurisprudência

  • Informações sobre o processo
    • ID nacional: Supreme Court, Judgment 404/17 0T8VCT.G1.S1
    • Estado-Membro: Portugal
    • Designação comum:N/A
    • Tipo de decisão: Decisão do Supremo Tribunal
    • Data da decisão: 21/02/2019
    • Tribunal: Supreme Court
    • Assunto:
    • Requerente:
    • Requerido:
    • Palavras-chave: B2C, conformity, consumer goods, consum, guarantee, consumer rights, contract law, legal actions, legal guarantee, legal rights, liability, presumption of conformity, servisse contract, terms and conditions, transposition, vulnerable consumer
  • Artigos da diretiva
    Consumer Sales and Guarantees Directive, link Consumer Sales and Guarantees Directive, Article 5
  • Nota introdutória

    In the construction contract concluded between a professional and a consumer (Owner’s Community), the recognition (expressed or implied) by the professional of the defects in the work is an impending fact to the application of the expiration of the terms, provided for in article 5 of Directive 1999/44 / EC, of the consumer's right to repair defects. If the consumer has warned the professional about the existence of defects and the professional proceeds to take care of their elimination, such conduct must be interpreted as an assumption of liability for defects. “DOCTRINE OF ONE’S OWN ACTS.”

  • Factos

    The plaintiff is an Owner’s Community (OC, hereafter) and the defendant is a corporation whose purpose is construction.

    In 2007, the OC entered into a construction contract with the company, in order to carry out the repair of the façade, which includes the removal of the existing cladding and the laying of tiles in its place. The work was carried out all throughout 2008.

    A few months after the completion of the work, some of the tiles placed began to become detached. The company was informed, and it proceeded to fix the issue on two occasions. After 2009, the tiles continued to break away and fall, so the company had to go back repeatedly to replace them. Faced with the company’s refusal to reach an out-of-court settlement that would lead to a final solution, the OC was forced to file a lawsuit. In this claim the OC requested: That the defendant be ordered to pay the value corresponding to the cost of elimination of the defects by replacing on the whole the facade, a new tile with a suitable adhesive, plus interest on late payment.

    In the statement of the claim, the company, in addition to contesting the alleged facts, defends itself by invoking the expiration of the claimant's right to the elimination of the defects due to the expiration of the period for the exercising of said right.

  • Questões jurídicas

    The recognition of the existence of the right to the elimination of the defects constitutes an impediment to expiration, for which the rights to repair of the recognized defects are extinguished under the terms of article 5 of Directive 1999/44/EC.

  • Decisão

    In the contract concluded between the company and the OC (as a consumer acting outside the scope of their professional activity), recognition (expressed or implied) by the company of the existence of defects in the work, involves the recognition of the right of the consumer to repair/eliminate them, and prevents the right from being extinguished by the course of the expiration periods provided in article 5 of Directive 1999/44 / EC (applicable to the case as it is a trader-consumer relationship between a professional and a consumer) and articles 1224 and 1225 of the Civil Code.

    The fact that the company had already made attempts to repair the work, must be interpreted as an acknowledgment of the defects in the work and its responsibility for the defects. The recognition, by the company, of the existence of the defects, prevents, in the first place, the rights of the consumer to be harmed by the term for the claim and, second, it prevents the consumer’s rights from being harmed by the deadlines for the judicial exercise of the action. The recognized right will be subject to the statute of limitations. New (yet) unrecognized rights, such as the rights deriving from the reappearance of the supposedly eliminated defects, or the appearance of new defects, will be subject to the limitation period, in general terms.

    URL: www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/b2da703649bd5de4802583a80056db69?OpenDocument&Highlight=0,directiva,consumo

    Texto integral: Texto integral

  • Processos conexos

    Sem resultados disponíveis

  • Bibliografia jurídica

    Sem resultados disponíveis

  • Resultado
    Final Judgement; not subject to appeal.