Legal Literature

Unfair Commercial Practices Directive, Chapter 1, Article 2, (d) Unfair Commercial Practices Directive, Chapter 1, Article 2, (k)

The author is of the opinion that an improper performance of a purchase contract might constitute an infringement of unfair competition rules.

The author states that the improper performance (as well as the proper performance) of a purchase contract constitutes a commercial practice according to § 2 I no. 1 UWG and article 2 (d) of the UCP Directive. Further, the improper performance of a purchase contract is misleading according to § 5 I 1, 2 no. 1 UWG if the defect in performance is not apparent for the consumer. According to the opinion of the author a deception about the defect free state of the performance is also relevant for taking a transactional decision, as the consumer is noticeably impaired in making an informed decision.

Therefore, in case of a defect the trader has to prove the circumstances showing that by use of professional diligence it was appropriate to assume that the performance was free of defects.  

The author summarizes that the goal of the UCP Directive is a high level of consumer protection. The consumer shall be able to make an informed decision. This is not possible if due to a deception about the defect free performance, he does not know that he has warranty rights. Therefore, also the contractual performance is subject to a review by unfair competition law.