Case law

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

(1) The choice of which remedy is to be pursued under Article 74 of the Consumer Affairs Act (which implements Article 3 of Directive 1999/44/EC) is the choice of the consumer and not of the trader.
(2) Negligence on the part of the consumer with regard to the goods purchased from the trader would need to be proved by the trader in the case that the consumer proves that such goods are in breach of Article 73 of the Consumer Affairs Act (which implements Article 73 of Directive 1999/44/EC), that is that such goods are defective or not in conformity with the description and specifications in the contract of sale.

The plaintiff discovered that some tears started to appear on the sofa which he bought from the defendant company only a short while after delivery. The plaintiff asked the defendant for such sofa to be replaced. After the defendant company failed to go ahead with this request the plaintiff initiated proceedings in front of the Consumer Claims Tribunal to rescind the contract. The Tribunal accepted the claim and ruled in favour of the defendant. Aggrieved by the decision, the defendant company appealed to the Court of Appeal on the basis that i) the sofa could not have torn in such a short time without some negligence on the part of the consumer ii) the defendant company offered to repair the sofa, but the plaintiff refused iii) in such cases the defendant company regularly repaired the product iv) there was a discrepancy between the plea of the plaintiff which stated that the sofa started to tear after 4 weeks and the sworn declaration which stated 7 weeks.

The court stated that any sort of negligence on the part of the plaintiff would need to be proved by the defendant and any sort of evidence was lacking in this respect. Rather, the court argued that the only conclusion that could be drawn was that the defendant delivered to the consumer a sofa which did not conform with the description and specifications in the contract of sale, thus breaching Article 73 of the Consumer Affairs Act or Article 2 of Directive 1999/44/EC.

Furthermore the court rejected the argument of the defendant company which insisted that in such situations it typically repairs the defective object. The court argued that in such cases the defendant company has no right to dictate what kind of remedy is to be given, because as set out by Article 74 of the Act (implementing Article 3 of Directive 1999/44/EC), save any exceptions contained in the Act, the choice of which remedy is to be pursued lies in the hands of the consumer who may either choose to repair or replace the goods, or ask for a refund.

Meanwhile, as long as the consumer stuck to the time limits in which a complaint may be made in terms of Articles 78 and 79 of the Act (which implement Article 5 of Directive 1999/44/EC) it did not matter if there was a discrepancy between the plea of the plaintiff which stated that the sofa started to tear after 4 weeks and the sworn declaration which stated 7 weeks.

(1) At whose option is the remedy for lack of conformity of the goods provided by Article 74 of the Consumer Affairs Act, which implements Article 3 of Directive 1999/44/EC?
(2) Can the trader absolve himself of responsibility of non conformity with the contract, in view of the consumer's negligence when considering Article 73 of the Consumer Affairs Act (which implements Article 2 of Directive 1999/44/EC)?

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The defendant’s appeal was rejected and the appealed decision was confirmed by the court.