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et_Case Details

et_Case Details
et_National ID Tallinn Circuit Court, Judgement 2-17-8780
Liikmesriik Eesti
et_Common Name N/A
et_Decision type et_Court decision in appeal
et_Decision date 28/06/2019
Kohus Tallinna Ringkonnakohus
Teema
Hageja
Kostja
Võtmesõnad conformity, consumer goods, consumer guarantee, sales contract

Consumer Sales and Guarantees Directive, Article 2, 1. Consumer Sales and Guarantees Directive, Article 3

EE:TLRK:2019:2.17.8780.18276

The consumer cannot terminate the consumer sales contract if he makes the declaration of termination more than 5 months after the discovery of the lack of conformity.

The consumer bought more than 200 saplings from the seller. In the sales contract, the seller promised to replace all samplings that had not started to grow properly by 25 June.

Shortly after the seller had planted them in May, the saplings started to dry out and turn yellow. In September, the seller replaced 45 saplings, but even the new ones (as well as the ones planted in May) continued to turn yellow although the consumer had taken proper care of them. An expert hired by the consumer in December reasoned that the roots of the samplings were defective (damaged and dried) from the very beginning. The seller did not accept the expert opinion and offered to replace 10 saplings in April. This did not satisfy the consumer who finally terminated the contract in June.

Can a consumer terminate the consumer sales contract due to the lack of conformity of the good 7 months after the discovery of the defect?

The appellate court agreed with the First Instance Court that also in case of saplings the 6-months reversal of the burden of proof applies. However, the appellate court also found that the consumer had lost his right to terminate the consumer sales contract as he made the declaration of termination only after more than 7 months since the discovery of the lack of conformity. The Court referred to § 118 (1) 1 of the Estonian Law of Obligations Act which allows termination of the contract only within a reasonable time after the creditor has become aware of the breach of contract.

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The Court denied the consumer’s claim due to the fact that the consumer had made the declaration of termination more than 7 months after the discovery of the lack of conformity. The decision shows that the Court has not interpreted the Estonian contract law in conformity with the Consumer Sales Directive as articles 3 and 5 of the Directive 1999/44 do not allow the application of such additional time limit for termination of the contract.