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Case Details

Case Details
National ID AP de Barcelona (Sección 17ª) Sentencia num. 301/2011 de 16 junio
Member State Spain
Common Name link
Decision type Court decision in appeal
Decision date 16/06/2011
Court Provincial Court of Barcelona
Plaintiff Unknown
Keywords commercial guarantee, conformity with the contract

Consumer Sales and Guarantees Directive, Article 6

The commercial guarantee is additional and ancillary to that of the seller (the legal guarantee), and does not replace the latter. Therefore, liability of the seller and the guarantor (commercial guarantee) is a joint liability.
The plaintiff bought a second-hand car from one of the defendants. The other defendant offered a commercial additional guarantee over the car. A breakdown occurred after some time. However, the defendants refused to cover the repair cost. The plaintiff took legal action against both the seller and the guarantor. The seller argued that he was not made aware of the defect until November 2007, the statute of limitation being applicable . The guarantor alleged that the defect was not covered by the guarantee because, according to the wording of the guarantee, defects which are known or ought to be known by the seller and are not communicated to the guarantor, were not under the scope of the guarantee. However, the defect was difficult to detect as it required a time of use for it to be noticed. Therefore, it was considered that the seller was unaware of the lack of conformity of the product and the commercial guarantee may be deemed to be applicable.
The Court considered that the lack of conformity was very difficult to detect, therefore, it could not be proven that the seller was aware or ought to be aware of such lack of conformity at the time of the conclusion of the contract. However, this does not entail that the seller is not liable at all and is the guarantor the one to respond for the lack of conformity. On the contrary, the Court stated that the right or conformity of consumer goods and services with the contract is a legal provision and therefore it cannot be waived by a contractual stipulation. As a result, where a contractual guarantee overlaps with the legal guarantee, the seller and the guarantor are jointly liable.
How is the liability regime of the seller and the guarantor (offering an additional commercial guarantee) construed when it is not proven that the seller is aware (or ought to have been aware of) the non-conformity of the product?
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The consumer’s claim succeeded. The plaintiff had to be repaid for the repair, arrears and damages.