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Remedies for buyers in B2C
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CESL (= Annex I) – Overview Part I: Introductory provisions … Part II: Making a binding contract … Part III: Assessing what is in the contract … Docsity.com Integrated System of Consumer Law in CESL (Annex I) • General contract law, e.g. applicable to any buyer (non-mandatory) • Specific consumer protection rules (mandatory), e.g. – Presumption that lack of conformity already existed when risk passed (Art. 105 (2) CESL) – Interest when debtor is a consumer (Art. 167 CESL) • General default rules made mandatory for consumer contracts, e.g. – Remedies for breach of information duties (Art. 29 (4) CESL) – Buyer’s remedies for lack of conformity (Art. 108 CESL) – Restitution (Art. 177 CESL) – Prescription (Art. 186) Docsity.com Level of Consumer Protection: Generally Very High CESL D. 44/1999/CISG/MS Money back in case of (not insignificant) lack of conformity, i.e no right to cure of trader Yes (except services) No (hierarchy) Payment for use in case of termination for lack of conformity Usually no Usually yes [CISG ?] Prescription/preclusion 10 (2) years Most 2 years [CISG -] Buyer‘s knowledge of lack of conformity harms No Yes Strict liability for damages Yes [DE: No] CISG: yes Docsity.com Consumer Protection Level – Benchmarks • Consumer Rights Directive => same (e.g. pre-contract infomation, right to withdraw) • Minimum Directives => same or higher (e.g. D. 1999/44, 93/13) • National Laws => same or higher – only very few exceptions with regard to individual MS Docsity.com Recommendation: Amend letter (a) in art. 106(3) CESL (added part underlined): “If the buyer is a consumer: (a) the buyer’s rights are not subject to cure by the seller, except where they relate - to goods which are made to the consumer’s specifications or are clearly personalised, or - to digital content; and Docsity.com Wrong exclusion of repair or replacement in case of excuse Art. 106 (4) CESL should read (deletion faded): “If the seller’s non-performance is excused, the buyer may resort to any of the remedies referred to in Paragraph 1 except requiring performance and damages”. Art. 131(2) CESL relating to the remedies of the seller needs to be amended accordingly. Docsity.com Remedies for digital content not supplied in exchange for a price, but for another counter-performance Art. 107 CESL should be amended (amended part underlined): “Limitation of remedies for digital content supplied for free Where digital content is supplied for free*, the buyer may not resort to the remedies referred to in points (a) to (d) of Article 106(1). The buyer may only claim damages under point (e) of Article 106 (1) for loss or damage caused to the buyer's property, including hardware, software and data, by the lack of conformity of the supplied digital content, except for any gain of which the buyer has been deprived by that damage.” * Instead of: “… is not supplied in exchange for the payment of a price…” Docsity.com
