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es_Case Details

es_Case Details
es_National ID 155/2003
Estado miembro España
es_Common Name María Virtudes v “García Navarro S. L.”
es_Decision type Otros
es_Decision date 06/03/2003
Órgano jurisdiccional Audiencia Provincial
Palabras clave

Consumer Sales and Guarantees Directive, Article 2, 1. Consumer Sales and Guarantees Directive, Article 5, 3. Consumer Sales and Guarantees Directive, Article 7, 1.

1. According to the case law of the ECJ, domestic law should be construed in line with the Directive not transposed within the deadline, in order to achieve the effect more in conformity with the Directive. Therefore, the duty to deliver a purchased good of the article 1484 of the Civil Code should be interpreted in the sense of article 2.1 of the Directive 1999/44/EEC on consumer sales, as for the duty to deliver a good in conformity with the contract.
2. Second hand goods are not excluded of the Directive, except in connection with the possibility of reducing the legal guarantees deadlines. The period of 6 months established in the articles 12.2 of the Law on Retail Trade and 11 of the Law on Consumer Protection are not applied to these goods of this nature.
3. Spanish legislation requires that the defects were in the origin of the purchase and did not occur at a later stage, whereas the article 5.3 of the Directive establishes a presumption of lack of conformity for 6 months after the delivery, which seems to exclude second hand goods. This presumption does not exist in the Spanish contract of sale before the transposition of the Directive, so it should not be interpreted according to this one, but demand that the purchaser proves that the defects were “native” (existing in the moment of acquisition).
On the 21st of January 2002, the purchaser acquired a second hand lorry with a trailer. Five days after the purchase it had a serious breakdown that affected the rear axle, which needed to be replaced. The purchaser exercised the action of contract resolution and the process focused on the search for evidence to determine whether the fault was “native” (originaria) or whether the breakdown was produced by misusing the platform. The court understood that the fault was already there in the beginning and it was not due to a progressive wear and tear of its elements, for it had only been used for a few days. Moreover, numerous defects that the seller could not prove as being due to misuse on the part of the purchaser, are considered proved. For all that the court of appeal accepts the termination of the contract, revoking the criteria of the first instance.
According to the judgment, in this case where latent defects were identified, it would have been better to present the lawsuit for „latent defects“ (arts. 1484 ff. Civil Code), than by means of termination of the sale due to failure to comply with the delivery, because with the latter one, the purchaser must prove not only the defect but that this renders the object inappropriate to be used. Despite of this, the court accepts the description of defect as a failure to deliver, because of the broadening of this concept, which has been introduced by the Spanish case law, including goods that short time after having been acquired are partially useless for the purpose they are made for. This case Law, states the judgment, has been incorporated into the Law of the European Union in the Directive 1999/44/EEC through the concept of „conformity“ of the article 2.1. The Spanish legislator should have transposed this Directive before the 1st January 2002 for it to be thoroughly applicable. The contract that is judged here is of 21st January 2002, therefore is subsequent to the deadline of the transposition of the Directive, but previous to the law of transposition (2003), for that reason the Directive „ will have to have the effectiveness that the case law of ECJ has established in the cases of a Directive that has not been transposed within the deadline, that is that the internal law is interpreted in order to look for the effect more in accordance to the Directive, which in this case is achieved by interpreting the obligation to deliver of the article 1484 of the Civil Code in the way that the article 2.1 of the Directive does, with the obligation to deliver something that is in accordance to the contract“.

This is such even with regard to second-hand goods, because these do not appear excluded from the Directive, except in order to reduce the deadline to complain. What is not applicable to the second hand vehicles is the article 12.2 of the Law on Retail Trade, which in application of the article 11 of the Law on the Protection of Consumers, establishes a minimum period of guarantee of six months starting from the moment of delivery. The reason for that is because the goods whose nature is against the obligation of guarantee, as the second and ones are, are excluded from that guarantee.

The above refers to faults or defects being „native“ and did not occur at a later stage. The article 5.3 of the Directive establishes on this matter the presumption that the lack of conformity that appear within six months after the delivery of the goods existed at that time, except when the presumption is incompatible with the nature of the goods, which seems to exclude from the presumption the second hand goods. This presumption does not exist in the legal regime on retail trade in Spain in the Civil Code, so for that reason the Spanish Law cannot be interpreted in accordance with the Directive on this point, and the purchaser has to prove the latent nature of the defects. On the basis of the evidence, the judgment interprets that there was an original defect and accepts the resolution of the sale, by ordering the amount of the sale being paid back to the applicant plus a compensation for damages. The role of consumer (or not) of the purchaser is not discussed.
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