Solicitor (England, Wales), Warsaw, Poland
A new consumer law granting rights to consumers, and laying new obligations on sellers, distributors and manufacturers of consumer goods has recently been introduced in Poland. The law of July 27, 2002 on Specific Conditions of Consumer Sales and Amendment of the Civil Code (the ‘‘Law’’) was published in the Official Journal of 2002, No.141, item 1176) and came into force on January 1, 2003. It aims to harmonise Polish law with EU requirements – in particular, with the Sale of Consumer Goods and Associated Guarantees Directive (99/44/EC) (the ‘‘Directive’’) which provides a baseline of protection for consumers across EU Member States. In line with the spirit of the Directive, the Law eliminates the guarantees and warranty of title under the Civil Code that have, up until now, been available to Polish consumers in goods purchases. As a result, the seller now has a greater obligation vis-à-vis the consumer and becomes liable for non-conformity ofthe goods with the sales contract. The Law replaces the previous, narrower concept of defective goods that was held under the Civil Code.
Ambit of the Law
The Law applies to the sale of moveable goods by a firm to a natural person (‘‘consumer goods’’) who acquires the goods for a purpose unconnected with his professional or economic activity. The Law does not apply to the sale of electricity, gas and water unless it is sold in limited quantities or a specified volume. Nor does it apply to bankruptcy proceedings or other court proceedings. The supply of such services continues to be governed by the Civil Code’s provisions on warranties and guarantees. Written sales contracts will not be required in all cases of consumer sales as Polish law allows for oral contracts. However, it is mandatory in the case of certain types of consumer sales such as those requiring payment by instalment, pre-payment, payment on order according to design or on sample and those above PLN 2,000.
New liability of seller
The seller is now liable for the quality of goods that, practically speaking, cannot be checked at the time of sale and that becomes apparent only when title has passed to the consumer. Hence, the Law allows the seller to seek legal recourse against previous sellers in the sales chain, i.e. distributors, importers, and manufacturers, whose action or inaction caused the goods’ non-conformity, even though these people were not party to the sales contract.
The Law requires that the goods be accompanied by ‘‘consumer information’’ in Polish, which should be clear and not misleading. It should also contain the price – the unit price as well as the advertised price (if such is the case) – of the goods offered. There should also be operating and servicing instructions in Polish and other documents as may be required under other legal provisions. The seller is liable for the non-conformity of the goods if they have been installed or started by the seller or consumer on the basis of erroneous instructions. If the goods cannot be fixed or replaced within the terms of the Law, the seller is also liable for the costs incurred by the consumer, and specifically the costs of dismantling, delivery, labour, materials and renewed installation and start-up.
Advertising and guarantees
The goods must meet the consumer’s ‘‘reasonable expectations’’, which result not only from the usual use and features of the equipment, but also from any advertising if it contains an assurance of the features of the goods that includes their date of validity. This applies to advertising originating with the distributor, manufacturer and other parties participating in the sales chain. In effect, the end seller is liable for the truthfulness of all advertising connected with the goods sold.
Where the advertising contains a guarantee, e.g. in addition to the Law’s provisions of liability for non-conformity with the sales contract, then the seller must also provide a ‘‘guarantee declaration’’, which can be provided in a separate document. A declaration must describe a guarantor’s obligations otherwise it does not amount to a guarantee. It should also contain a statement that it does not exclude, limit or suspend consumer rights resulting from the non-conformity of the goods with the sales contract.
Consumer’s recourse against seller
The Law provides for legal recourse by the consumer against the seller in a two-stage process where the goods sold do not conform to the description in the sales contract.
- Repair or replacement of the goods (unless this is impossible or would incur excessive cost) at no charge to the consumer. This is to be undertaken within an appropriate time, taking account of the type of goods and the purpose for which they were acquired.
- If the seller has not responded to a consumer’s claim within 14 days, he is deemed to accept the buyer’s grounds for demanding reparation. If it is impossible for the demand to be performed because of the presence of conditions specified under the Law, then the consumer may demand an appropriate price reduction or the revocation of the sales contract unless the non-conformity of the goods is not essential to the sales contract.
The consumer loses the above rights if he does not inform the seller of the failure of the goods to conform to the terms of the contract within two months of purchase. Shorter time-limits may be established in the case of agricultural products. The time-limit is restarted in cases where the goods are replaced. The parties may shorten the time-limit in the case of second-hand goods, but it may not be less than one year.
The time-limit for legal recourse against the seller, which may become operative as a result of the two steps described above, lapses after one year from the date of determining the non-conformity of the goods. This lapse cannot occur before the end of two years from the date of acquisition of the goods by the buyer. The same time-limit applies to revocation of the sales contract. Informing the seller of the non-conformity interrupts the clock for the above-described lapse of time as well as for the period during which repair or replacement is made, or during conciliation talks that last for not more than three months. It may be difficult for the seller to determine when the buyer actually identified the alleged non-conformity of the goods and hence the defence of a time lapse will be of limited application.
Increased costs for all in the sales chain
The Law is likely to increase the costs of goods incurred by distributors, importers and manufacturers as all parties in the sales chain begin to factor in their exposure to liability for potential legal actions and for the replacement of goods that do not conform to contractual terms. The content of advertising, even that on billboards, can expose those parties in the sales chain who are not directly responsible for its design. Exposure to liability will also apply to parties who have placed their name or trademark on consumer goods.
Standard agreements between final sellers, distributors, importers and manufacturers will require changes to ensure conformity with the requirements of the Law. The end-sellers themselves will have to bear the costs of establishing technical-organisational points of sale where the goods can be appropriately tested and examined by potential consumers. While the Law does not provide sanctions for failure to establish such points, they are nevertheless likely to be established, regardless of the cost, to strengthen seller defences against consumer litigation. All in all, the Law promises added costs to all in the sales chain; costs that in the end are likely to be passed on to the consumer.
First published in European Newsletter, combining Eastern Europen Newsletter, Issue 2, March 2003, Sweet & Maxwell, UK.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.