Case law

  • Case Details
    • National ID: Court decision number 277/2014
    • Member State: Greece
    • Common Name:link
    • Decision type: Other
    • Decision date: 01/01/2014
    • Court: Court of first Instance of Piraeus
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: conformity with the contract, omission, performance, sales contract, seller
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 2, 1. Consumer Sales and Guarantees Directive, Article 2, 2. Consumer Sales and Guarantees Directive, Article 2, 2., (a) Consumer Sales and Guarantees Directive, Article 2, 2., (b) Consumer Sales and Guarantees Directive, Article 2, 2., (c) Consumer Sales and Guarantees Directive, Article 2, 2., (d) Consumer Sales and Guarantees Directive, Article 2, 3. Consumer Sales and Guarantees Directive, Article 2, 5. Consumer Sales and Guarantees Directive, Article 3, 1.
  • Headnote
    (1) As a property of the thing is considered not only a particular physical feature or benefit, but also any other quality which, based in the nature and the duration of the product’s usage, affects the value or usefulness of the thing according to the specific trade perceptions. Moreover, as an agreed property is considered a property that has been expressly or implicitly agreed between the parties in particular for the specific thing that is essential to the buyer and that the seller guarantees for it and assumes the relevant responsibility in case that property is missing.

    (2) The improper installation of a good is considered as non-proper contractual performance; in particular as such is considered any improper installation conducted by the seller or the provision of improper installation instructions by the seller, if this installation or instructions were part of the seller’s contractual obligations.

    (3) A seller is liable for the improper installation of the thing sold.

    (4) Compensation under the seller’s contractual liability due to the defects of the good (infringement of main contractual obligation), aims at covering both actual damages and lost profits of the buyer for non-performance of the contract, in order to bring him (financially) in the position where the buyer would have been if the good corresponded to the contract (had not actual defect or bore the agreed property). Compensation involves the loss which is closely related to the sale contract i.e. the damage that has a causal link with the non-performance or the improper performance of the sales contract by the seller and does not include any damages due to tort.
  • Facts
    The plaintiff purchased from the defendant ten (10) engine cylinder liners manufactured by the defendant. The defendant also undertook the responsibility to provide ancillary sale services; seller was responsible of monitoring and supervising the proceedings of removal of the old engine cylinder liners as well as the installation of the new ones in the cylinders of the vessel’s machines (in accordance with the instructions of the defendant’s technical advisor, who attended these operations). However, after the completion of the works and as soon as the plaintiff's vessel begun its business trips, six of those liners presented fractures, although they had been used much less time than is expected for the normal wear of the specific good. The plaintiff considered that these flaws were due either to the defectiveness of the goods sold or due to the inadequate and erroneous instructions and supervision of the defendant’s technical advisor during the installation process. The plaintiff informed the defendant of the defects, but the defendant did not respond. Therefore the plaintiff suffered actual damages due to, according to the plaintiff’s allegations, unconventional and tortious conduct of the defendant. In addition, the plaintiff asked to be compensated for moral damages due to tort.
  • Legal issue
    The court ruled that the defendant installed improperly the thing sold to the plaintiff and therefore he was liable for improper performance of the contract. It was held that the seller is liable in case that the sale of a good includes a further obligation for installing the good either by the seller himself or by his assistants; in that case installation is regarded as a primary or ancillary obligation to the sale obligation. In particular, with regards to improper installation, this is attributable to the seller even when installation was conducted by the buyer but the defect is due to the breach of the contractual obligation of the seller to provide instructions to the buyer i.e. to give the instructions that are required to comply with the properties of the good and/or that refer to the exact way of installing that good.
    So, the court accepted the plaintiff’s claim which derived from the sale contract. Still it rejected the claim requesting compensation due to tort. It held that the parties had concluded a sales contract, therefore, the occurrence of an actual defect or the provision of inadequate installation instructions do not constitute a tort, but rather a breach of the defendant's contractual obligations. Hence any compensation involves only the loss which is closely related to the sale contract i.e. the damage that has a causal link with the non-performance or the improper performance of the sales contract by the seller and does not include any damages due to tort.

  • Decision

    (1) What does property of the thing mean? What does agreed property of the thing mean?

    (2) Is the improper installation of the thing sold considered as non-performance (or improper performance) of the purchase contract?

    (3) Is the seller liable for the improper installation of the thing sold?

    (4) What is included in the compensation due for contractual liability of the seller because of the defectiveness of the good?

    Full text: Full text

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  • Result
    The plaintiff’s claim was partially accepted.