Jurisprudence

Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, ANNEX I, 1., (b)

The fact that a hot plate becomes immovable after installation does not exclude the application of the consumer sales law. At the time of the conclusion of the sales contract, the cooker was a movable and tangible good. The provisions of the consumer sales law implementing the Consumer Sales Directive are equivalent to public order rules in the national legal order. They have to be applied by the judge of its own motion. The lack of conformity resulting from incorrect installation of the consumer goods is equivalent to lack of conformity of the goods if the installation forms part of the contract of sale of the goods and the goods were installed by the seller. Parties can agree on a specific period of time within which the defects of the goods installed must be brought to the attention of the seller provided that this period is not shorter than 2 months after the day that the consumer becomes aware of the defect. However, contract terms restricting the consumer’s rights on the basis of the Consumer Sales Directive are null and void.

A natural person bought a kitchen including the installation of this kitchen in his home. The installation by the seller of the hot plate, also included in the sales contract, appeared to be defective. The judge of first instance applied the consumer sales provisions of the Civil Code since there was no dispute between the parties about the qualification of the contract as a consumer sales contract. He discovered that the hot plate was incorrectly installed and condemned the seller to recovery in kind within a three-month period of time. In appeal, the seller claimed that the hot plate was not bought by a consumer and that the consumer sales rules do not apply. The Court of Appeal stated that the finding of the judge in first instance that the contract was a consumer sales contract must be seen as an authentic statement that in absence of forgery could no longer be disputed. The installation forms part of and is an accessory to the sales contract so the judge was right in applying the consumer sales rules. Those rules are to be considered as rules equivalent to national public order rules. In consequence, an application by the judge of its own motion is in place.

Can the parties restrict through contract terms the rights granted to the consumer by the Consumer Sales Directive? Must a judge apply the consumer sales rules of its own motion? Is a movable and tangible good that becomes immovable after installation, an item to which the consumer sales rules apply? Are the consumer sales rules equivalent to national public order rules?

The Court of Appeal upheld the decision of the first judge and condemned the seller to reinstall the hot plate free of charge.

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The importance of the judgement lies in the fact that the Court of Appeal expressly states that the provisions of the Consumer Sales Directive are public order provisions and that the judge is required to apply those rules of its own motion. A contract term that restricts the rights that a consumer derives from the Directive is null and void. The Court confirms the binding nature of the Directive and confirms that any contractual term concluded with the seller before the lack of conformity that is brought to the seller's attention, which directly or indirectly waive or restrict the rights resulting from this Directive, is not binding on the consumer.