Consumer Sales and Guarantees Directive, Article 3, 2. Consumer Sales and Guarantees Directive, Article 3, 5. Consumer Sales and Guarantees Directive, Article 3, 5., - Consumer Sales and Guarantees Directive, Article 3, 5., - Consumer Sales and Guarantees Directive, Article 3, 5., - Consumer Sales and Guarantees Directive, Article 3, 6.

ECLI:RO:CATIM:2019:025

In the case of an important lack of conformity, the consumer cannot be obliged to accept a repaired product and is entitled to rescind the contract.

A dispute arose between a consumer and a professional regarding a defective product. After delivery, the consumer found the defects and returned the product, demanding a  replacement. Th seller notified him that he would not proceed with the replacement and that the consumer had to either bear the cost of repair  or accept the product without repair.  The Court in first instance admitted the consumer’s claim; the seller brought an appeal, which was rejected, and then it launched a recourse against that judgement.

Following a lack of conformity, what requirements must be met in order for the consumer to be able to have the contract rescinded?

The Court referred to the provisions of art. 10, 13 and 14 of the Law 449/2003 and found that in order for a reparation or replacement of a product to be acceptable, it is necessary that the defect found be of little importance and that the substituted products be of the same kind. When the lack of conformity is not minor, the consumer is entitled to  have the contract rescinded when the seller refused to replace it with a new one.

Since in the given case the sums (required by the seller) for reparation were almost half of the value of the product and since the seller remedied the product long after the 15 days, which were mentioned in the certificate of guarantee and in the applicable legal provisions, the Court of Appeal considered that The County Court made a correct application of the Law when it accepted that the consumer was entitled to unilaterally terminate the contract and to obtain a full reimbursement of the price paid.

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The Court rejected the recourse brought by the seller. It clarified the legal remedies for  which the consumer is entitled to in the case of an important lack of conformity of the products: rescission of the contract and reimbursement of the price. The decision is final.