Retspraksis

  • Sagsoplysninger
    • Nationalt ID-nr.: 2003-4012/7-368
    • Medlemsstat: Danmark
    • Almindeligt anvendt navn:N/A
    • Afgørelsestype: Andet
    • Afgørelsesdato: 24/08/2004
    • Retsinstans: Forbrugerklagenævnet
    • Emne:
    • Sagsøger:
    • Sagsøgt:
    • Nøgleord: Retspraksis Danmark dansk
  • Direktivets artikler
    Consumer Sales and Guarantees Directive, Article 3, 3.
  • Indledende note
    The burden of proof concerning the exceptions is on the seller.
  • Fakta
    A consumer bought a video camera, price 4.495 DKK (app. 600 euro). When the camera broke down one month later the seller insisted on repair instead of replacement as claimed by the consumer. The consumer brought a complaint before the Consumer Complaints Board. The Board asked the seller to substantiate that replacement was disproportionate compared with repair. The seller stated that the cost price was 4.118 DKK. (app. 550 euro), and that repair would be carried out by the supplier without charge. The seller estimated that the camera could be sold as a second-hand good at a price of 2.495 DKK (app. 330 euro). In the repair period (14 days) the consumer was given the use of another camera without charge by the seller.
  • Juridisk spørgsmål
  • Afgørelse

    In its decision the Board referred to the Sales of Goods Act § 78, sec. 1 and 2 (implementing Directive 1999/44/EC art. 3, sec. 3) according to which the consumer is entitled to choose between replacement and repair when goods bought are not in conformity with the contract, unless the remedy chosen is impossible or disproportionate because it imposes costs on the seller that are unreasonable taking into account the value of the goods without the lack of conformity, the significance of the lack of conformity and whether the alternative remedy can be completed without significant inconvenience to the consumer. The Board explicitly stated that the burden of proof concerning the exceptions mentioned is on the seller. The Board also stated that the disproportionate-evaluation, as far as the costs are concerned, is based on (1) the costs imposed on the seller by the remedy chosen, (2) whether these costs exceed the costs imposed on the seller by the other remedy in question, and (3) whether the difference in terms of costs is disproportionate.
    Referring to the costs mentioned above and to the fact that the consumer during the repair period was given the use of another camera without charge by the seller the Board concluded that the seller had substantiated that the replacement would have imposed unreasonable costs on the seller compared with the costs of repair and that repair was completed without significant inconvenience to the consumer. Therefore, the case was decided in favour of the seller.

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