Case law

  • Case Details
    • National ID: 2004-4031/7-1146
    • Member State: Denmark
    • Common Name:link
    • Decision type: Other
    • Decision date: 14/03/2005
    • Court: Forbrugerklagenævnet (Others)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 3.
  • Headnote
    A replacement would not impose disproportionate costs on the seller.
  • Facts
    A consumer bought a colour printer. After 2½ months the print head broke down. The consumer demanded replacement. The seller insisted on repair because it was only necessary to replace the print head and because the consumer was no longer in the possession of the original package. The seller stated that the cost price of a new printer was app. 700 DKK (app. 95 euro), that repair would impose no costs on the seller, and that the printer could be sold as a second-hand good at a price of 500-600 DKK (app. 70-80 euro) if the package was complete with new ink cartridges. According to the seller his loss in case of replacement would be app. 285 DKK (app. 38 euro) for the printer, 416 DKK (app. 55 euro) for ink cartridges plus the price of a new printer.
  • Legal issue
    In its decision the Consumer Complaints 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 fact that repair is easy and inexpensive does not per se mean that replacement is disproportionate, because also the inconvenience to the consumer and the seller's possibility to repair and sell the good as a second-hand good must be taken into account..
    The Board found that the seller could transfer the ink cartridges (in the printer sold) to a new printer replacing the non-conforming one and accordingly that replacement would not in this respect impose any costs on the seller. Furthermore, the Board found that the difference between repair and replacement in terms of costs imposed on the seller should be calculated as the difference between the cost price of a new printer and the second-hand price of the repaired printer. Therefore, it was not substantiated by the seller that difference in terms of costs imposed on the seller was more than app. 200 DKK (app. 25 euro).
    Based on an overall assessment, taking into account also the fact that the non-conformity had appeared only a short time after the purchase, that the consumer used the printer on a regular daily basis and that seller had not offered the use of another printer free of charge in the repair period (14 days), the Board concluded that replacement would not impose disproportional costs on the seller, cf. § 78, sec. 2 of the Sales of Goods Act implementing art.3, sec. 3, of the Consumer Sales Directive 1999/44/EC. The case was decided in favour of the consumer.
  • Decision

    Full text: Full text

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  • Result