A warranty is the liability of a seller for a physical or legal defect. Liability under a warranty for defectsis regulated by the legislator in the provisions of the Civil Code. It is not dependent on the occurrence of damage on the part of the buyer as a result of the conclusion of the sales contract. It is sufficient for the seller to be liable if there is a physical defect or a legal defect in the item. I have written more extensively on the regulation of warranty in relation to natural persons here: The truth and myths about claiming goods.
Today, I will say a few words about the buyer's claims against the seller when the seller is a trader. There are two situations to be distinguished:
- when a sole trader enters into a non-business sales contract;
- when the other entrepreneurs (companies) are the buyer.
Warranty for defects in goods - physical defect
Let me remind you that the essence of a physical defect in a sold thing is its non-conformity with the content of the contract. In particular, we may speak of non-conformity with the contract if the thing:
- does not have the characteristics which a thing of that kind should have by reason of the purpose stated in the contract or resulting from the circumstances or use,
- does not have the qualities which the trader has assured the buyer of, for example by presenting a sample or model,
- when the item is not fit for the purpose for which the buyer informed the seller at the time of purchase of the item and the seller has not objected to such use, or
- when the item has been delivered to the buyer in an incomplete condition.
Warranty for defective goods - legal defect
In contrast, a legal defect occurs when:
- the thing is encumbered by a right of ownership or another right held by a third party,
- the use of the thing is restricted by an administrative decision or a decision of a competent state authority.
It should be pointed out that the above catalogue is not closed and it is possible to expand it.
Warranty liability is also called absolute liability. Why? Because there are no prerequisites allowing the seller to evade this liability. Nevertheless, the seller is not strictly liable. And, in addition, he is exempted from liability for defects of an item if the buyer had knowledge of the existence of the defect at the time the contract was concluded or the item was delivered.
At this point - before going any further - it should be pointed out that the legislator regulates warranty liability differently when the parties to the contract are entrepreneurs. And differently when the contract is concluded between a businessman and a consumer. But beware - a very important issue is the change introduced, effective from 1 January 2021. Under it, by virtue of which the legislator has made it possible for a sole trader to obtain legal protection on similar terms to that of a consumer. Under certain conditions, of course.
However, one step at a time...
Warranty for defects in goods - buyer as a sole trader
As I mentioned recently, the law allows the trader to enjoy special protection. This means that the trader is treated on an equal footing with the consumer with regard to warranty claims.
Who is the consumer?
A consumer is a natural person who makes a legal transaction with a trader which is not directly related to his/her commercial or professional activity.
Example
Explaining the above, let us imagine a person engaged in the business of providing shoe repair services. In a situation where our shoemaker acquires the tools he needs to carry out shoe repair in his business - he will be treated as a professional. Namely, as an entrepreneur. On the other hand, the issue will look different if the cobbler enters into a sales contract for the purchase of sports shoes. If he intends to engage in sports - then he will be entitled to consumer warranty rights.
It should be emphasised that the above applies only to entrepreneurs who are natural persons. This is because the legislator has made the assumption that, in certain situations, a natural person carrying out a business activity should be treated in the same way as a person who does not carry out any business or professional activity.
Goods defect warranty - when can a trader make use of it?
A sole trader should certainly be treated as a professional with regard to services related to his business. However, this does not mean that, when carrying out a legal act - even one directly related to his or her business - the trader should be deprived of the special protection afforded to the consumer.
Example
Let me explain this with the example of our cobbler. Let's assume that the shoemaker in the premises where he runs his service business intends to make an internet media connection. It is undisputed that the conclusion of the contract with the telecommunications service provider will be directly related to the shoemaker's business. However, it cannot be overlooked that the telecommunications service provider is still the stronger party in the legal relationship in question. The shoemaker, as an entrepreneur, has entered into a contract, but the subject matter of the contract is not related to its scope of activity.
In conclusion, a shoemaker is a specialist in a field related to shoe repair. On the other hand, he is not necessarily familiar with issues related to the provision of Internet services. In view of the above, when pursuing a contractual claim with a supplier
telecommunications the cobbler will be treated like a consumer.
The situation would be different if he had entered into a work contract in order to renovate his damaged footwear. Then, as the subject of the work is related to his market specialisation and the contract is directly related to his business activity, there are no grounds for extending special protection to the entrepreneur.
It is worth mentioning that the provision limiting the possibility to exclude or limit the provisions on contracts directly related to their business activity does not apply to purchasers - natural persons conducting business activity in the scope of contracts directly related to their business activity, when it results from the content of this contract that it does not have a professional character for these persons.
warranty. The application of the warranty provisions may be limited or even excluded by the parties (Art. 556 4 of the Civil Code).
In addition, the provisions ordering the inspection of the item after purchase on pain of loss of warranty rights and ordering the buyer to sell the item if there is a risk of deterioration (Article 556 5 of the Civil Code) also do not apply to such buyers.
Buyer as a businessman - differences in warranty
In legal transactions, it is assumed that the consumer is entitled to special protection due to his weaker position. The consumer is the weaker commercial actor, unlike the trader, who is treated as a professional. A businessman should exercise due diligence in the conduct of his business, which is manifested, among other things, in the fact that he should also take care of his interests when concluding sales contracts.
This does not mean, of course, that such a trader is not entitled to warranty protection. However, it suffers from a number of limitations, which are discussed below.
Presumption of defect
If the consumer discovers the defect within one year of the date on which the goods were handed over to him, the defect is presumed to have existed when the danger passed to the buyer, i.e. generally when the goods were handed over to the buyer. This presumption does not apply when the buyer is a trader. The trader must prove that the defect existed at the time the goods were handed over, even if the defect was discovered by the trader within one year of the handover of the goods.
Seller assurances
If the buyer is assured of the characteristics of the goods, the absence of the listed characteristics of the goods of which the seller assured the buyer is evidence of the defectiveness of the goods.
The source of assurance will also be the public assurance of the manufacturer of the thing or its representative. And also the person who places the thing on the market in the scope of his business activity. The stronger protection of the consumer is reflected in the fact that, where the buyer is a consumer, such assurances are treated on an equal footing with the seller's assurance. This means that if the buyer is a trader, the seller will not be liable for the assurances of other traders, but only for his own.
Contractual warranty limitations
The seller's liability under warranty may be extended, limited or excluded entirely by agreement between the parties.
However, also in this case, the legislator has regulated legal relations differently depending on the actors involved. The exclusion or limitation of liability under warranty towards the consumer is only possible in cases specified in special provisions. Of course, the exclusion or limitation of liability does not apply if the seller has fraudulently concealed a defect in the goods. Where the buyer is a trader, the parties may limit or exclude the warranty at any time.
Conversion of powers
The purchaser has the following rights under the warranty:
- withdrawal,
- price reduction,
- request for repair,
- a request for the replacement of an item with a defect-free item.
If the buyer is a trader, the trader may not exercise the consumer's right to exchange the remedy proposed by the seller, i.e. the repair of the goods for a new one or, conversely, to require the removal of the defect instead of the replacement of the goods. Such a request can only be made by the consumer and only if the replacement is possible and does not require unreasonable costs compared to the remedy proposed by the seller.
Things marked by species (apples, wheat)
When the subject of the sale is an item designated only by its type or an item to be produced in the future, the seller is relieved of warranty liability if the trader buyer knew of the defect at the time the item was handed over. In all other cases, the seller is liable to the trader for goods of a certain quality. The seller is liable to the consumer in all circumstances, regardless of whether the consumer knew of the defect or not.
Dismantling the item
Significant changes have also occurred with regard to the dismantling of the defective item. In fact, the buyer is entitled to require the seller to dismantle the item and reassemble it. However, the seller has the right to refuse to dismantle and reassemble the item. This is the case if the resulting costs exceed the price of the item sold. Here again, the trader buyer is less protected. This is because the above situation applies to traders.
If the contract has been concluded with a consumer buyer, the seller is not entitled to refuse to dismantle and reassemble the item.
Time limit for handling complaints
An important issue for consumers and traders, who according to the new legislation are treated equally to consumers, is the time limit for the recognition of a complaint. The seller has a statutory obligation to respond to the request made by the buyer within 14 days from the date of notification. Failure to respond within the required period is deemed to be acceptance of the demand. The 14-day deadline does not apply to other traders. This does not mean, however, that they will have to wait an eternity for a response to a complaint. Pursuant to article 560 § 1 of the Civil Code, the buyer may make a declaration of reduction of
price or withdraw from the contract. Unless the seller immediately and without undue inconvenience for the buyer replaces the defective item with a defect-free one or removes the defect.
Supreme Court case law indicates that the phrases 'immediately' or 'within a reasonable time' mean a period of no more than 14 days.
Checking things at the time of purchase
It is not necessary for the buyer to examine or inspect the item sold in order for the warranty liability to arise. before or during the conclusion of the sales contract. As one can easily guess, this time too the legislator puts entrepreneurs at a disadvantage. In the case of sales between entrepreneurs, the buyer is obliged to examine the purchased item at the time and in the manner usual for such items. On the other hand, if a defect is found, he should notify it to the seller, under pain of losing his rights under the warranty.
Perishable goods
In order for the buyer's claims to be satisfied, in many cases it is necessary for the seller to collect the goods. What to do when the seller delays collection of the goods? Well, this time too, the legislator regulates the rights of consumers and entrepreneurs differently. The seller is obliged to accept the goods. If the seller delays acceptance of the goods, the buyer may send the goods back at the seller's risk and expense. If the item is lost or damaged, the seller is liable. However, if the buyer and
the seller is a trader, the buyer is furthermore entitled, and if the interests of the seller require it, also obliged, to sell these items. Above all, when there is a risk that they could spoil or be damaged.(yoghurt).
Goods defect warranty - summary
The seller is liable under the warranty if a physical defect is discovered before the expiry of two years. However, in the case of defects in real estate, the statute of limitations is five years from the date on which the goods were handed over to the buyer. A claim for the rectification of a defect or the replacement of a sold item with a defect-free item is time-barred after one year. Obviously, counting from the date the defect was discovered.
