Case law

  • Case Details
    • National ID: Forbrugerklagenævnets afgørelse i sag 15/04903
    • Member State: Denmark
    • Common Name:The Consumer Complaints Board’s decision of 8 June 2016
    • Decision type: Administrative decision, first degree
    • Decision date: 08/06/2016
    • Court: The Consumer Complaints Board
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: cancellation of contract, consumer rights, repair, replacement
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 3.
  • Headnote
    (1) A consumer cannot terminate a contract when the trader has offered to cure the defect.

    (2) A consumer cannot demand a trader to cure the product free of charge and be responsible for any further damages that are the indirect result of the consumer's actions.

    (3) A trader is not required to cure a defect when this is impossible or would subject the trader to liability for damages due to circumstances for which the consumer is responsible.
  • Facts
    A consumer bought a telephone from a trader on 10 September 2013. On 6 March 2015, the consumer notified the trader of the lack of conformity as the microphone had stopped working and the operating system was slow.

    The trader acknowledged that the telephone was defective but refused to cure the defects because the screen was cracked.

    The trader offered to cure the defects on the condition that the consumer paid the trader to replace the telephone's screen. The consumer refused this deal and demanded to terminate the contract.

    The trader, on the other hand, refused to terminate the contract but offered to either reduce the price of the telephone with the amount of money it would cost to have the telephone repaired, or to cure the defects provided that the consumer accepted that the trader was not responsible for possible further damages to the screen.
  • Legal issue
    The board ruled that the consumer could not terminate the contract as the seller had offered to cure the defects.

    Nevertheless, the seller was not required to cure the defects as the telephone could not be repaired without a considerable risk of further damaging the screen - a circumstance for which the consumer was responsible. Further, the board noted that the consumer bears the risk for any accidental damage to the product during repair as the risk has passed to the consumer at the time of delivery and that demanding the seller to assume that risk equaled rejecting the offer to cure the defect.
  • Decision

    (1) Can a consumer terminate a contract when the trader has offered to cure the defect?

    (2) Can a consumer demand the trader to cure the product free of charge and be responsible for any further damages that are the indirect result of the consumer's actions?

    (3) Is a trader required to cure a defect when this is impossible or would make the trader liable for damages due to circumstances for which the consumer is responsible?

    URL: http://www.forbrug.dk/Afgoerelsesdatabase/Forbrugeromraadet/telefoner/20160815-Manglende-medvirken-umuliggjorde-afhjaelpning?tc=9D4BE9430D6C413D8C0DE211F2075B47

    Full text: Full text

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  • Result
    The consumer's demands were denied.