Decyzja Prezesa Urzędu Ochrony Konkurencji i Konsumentów nr RKT-3/2019.
Prezes Urzędu Ochrony Konkurencji i Konsumentów.
The definition of physical defect adopted in the Civil Code refers to the assessment of the content of the concluded sales contract. It is not possible to clearly determine the absence of a defect without first analysing the submitted declarations of intent. In the case of online sales, the content of these statements will require, inter alia, determining the information made available to the consumer by the seller via the online store, the manner of their presentation, possible correspondence with the consumer before the conclusion of the contract, etc. Therefore, not only the item itself and the method of its production will be assessed, but also what constitutes the whole circumstances related to the conclusion of the contract, affecting the content of mutual rights and obligations of the parties. Therefore, the cases specified in point 10.4 of the Regulations could possibly be the subject of consideration when assessing the validity of consumer claims in a specific factual state. They cannot, however, explicitly exclude the consumer's rights under the warranty. The prohibition of introducing restrictions on the liability of the seller under the warranty in the case of contracts concluded with consumers results directly from art. 558 § 1 of the Civil Code. It should be noted here that the provisions in force in the abovementioned scope constitute the implementation of EU legislation. In accordance with art. 7 of Directive 1999/44 / EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (Official Journal of the European Union No. 171, p. 12): "All contractual terms or arrangements concluded with the seller before the seller is notified of non-compliance which directly or indirectly derogates or limits the rights arising from this Directive shall not be binding to the consumer in accordance with national law. " Recital 22 states that 'the parties may not, by mutual consent, limit or revoke the rights conferred on the consumer, otherwise the legal protection granted would be thwarted; this principle should also apply to clauses that suggest that the consumer was aware of any incompatibilities of consumer goods existing at the time the contract was concluded (...). "