The Constitutional Court rejected the constitutional complaint, but in this case the legal positions of The First and Second Instance Courts, with which the Constitutional Court agreed, are of importance.
The Šibenik County Court found the following:
…since no commission was indisputably agreed on between the parties and since the plaintiff indisputably handed over his paintings to the defendant, and the defendant handed over his paintings to the plaintiff, The First Instance Court correctly concluded that considering the objections, the parties concluded a contract of exchange and not a contract of commission, ...
Since a contract of exchange was concluded between the parties, and given the allegations and objections of the plaintiff, which are repeated in the complaint that the two paintings by Frane Šimunović are forgeries, this legal relationship between the parties should be considered through the provisions of the contract of sale of goods in accordance with the provisions of Art. 475 in connection with Art. 404. Obligations Act (OA), as further concluded byTthe First Instance Court.
According to the provisions of art. 404, paragraphs 1 and 2 of the OA, when after receiving the item it turns out that the item has a defect that could not be detected by the usual inspection when receiving the item, the buyer is obliged, under threat of loss, to inform the seller within the two month period from the day the defect was discovered, provided that the seller is not liable for defects that appear after two years have elapsed since the delivery of the goods.
The specified deadlines are preclusive, which means that the buyer, if he misses them, loses the rights from art. 410. OA.
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