The Act of November 4, 2022 introduced changes to the following acts: on consumer rights, the Civil Code and private international law. Implementing the provisions of European directives, it influenced the understanding of the concept of defect.
The essence of a defect, within the meaning of the provisions of the Civil Code, is the fact that it results in liability on the part of the seller.
The defect consists in the non-compliance of the item sold with the contract. In the current legal status, the concept of inconsistency of the sold item with the contract includes both physical and legal defects of the item. Changes in the provisions of Art. 556-5563 k.c. removed the – erroneous – identification of non-compliance with the contract with only a physical defect and extended the concept of non-conformity with the contract also to legal defects. Undoubtedly, compliance with the contract should also cover legal defects.
The purpose of the introduced changes was the implementation of European regulations – directives on certain aspects of contracts for the supply of digital content and digital services and on certain aspects of contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/ 44/EC. Both directives are primarily aimed at contributing to the proper functioning of the internal market while ensuring a high level of consumer protection.
Amended Art. 556 [1] of the Civil Code, using the term „in particular”, establishes an open catalog of situations in which non-compliance with the contract constitutes a physical defect of the item. It occurs primarily when:
- the item sold does not have the properties it should have due to the purpose specified in the contract or resulting from the circumstances or purpose, and the circumstances do not have to result only from the content of the sales contract, but may also accompany its conclusion (item 1);
- the item does not have the properties that the seller assured the buyer about, as indicated in the doctrine, such assurance may only take place when concluding the contract (point 2);
- the item is not suitable for the purpose of which the buyer informed the seller – when concluding the contract – and the seller did not raise any objections to such a purpose (point 3);
- the item was handed over to the buyer incomplete, according to the settled jurisprudence, this type of defect is not quantitative shortages or delay in delivering the rest of the performance (point 4).
The legislator clearly distinguishes between two possible situations. The first, specified in point 1, takes place when the item is inconsistent with the provision of the contract setting its purpose, and the defect consists in the non-compliance of the item sold with the accidentalia negotii (clauses) of the sales contract. The second one occurs when the sales contract does not contain any provisions informing about its purpose or when the parties to the contract do not make reservations as to the purpose within the contractual provisions. In this case, the non-compliance with the provisions described in point 4 concerns non-compliance with the essentialia negotii of the sales contract, i.e. with materially significant elements – the obligation to transfer ownership and hand over the item in exchange for the obligation to pay the price.
A legal defect is defined in Art. 556 [3] of the Civil Code, according to which an item is affected by such a defect if it is owned by a third party, is encumbered with the right of a third party, or the restriction on the use or disposal of the item results from a decision or judgment of a competent authority. This regulation is particularly important because the sales contract comes into effect when the parties incur solo consensus obligations. Thus, it could happen that the buyer, despite paying the sale price, would not become the owner of the thing sold. In such a situation, it is necessary to determine the seller’s liability under the warranty, which is absolute. In the current legal status, however, the Civil Code no longer uses this concept, which has been replaced by „non-conformity of the sold item with the contract”. In the case of the sale of a right, the legislator extends the catalog of premises for a legal defect, indicating that it may also consist in the non-existence of the sold right. It should be emphasized, following the judgment of the Court of Appeal in Warsaw of June 27, 2018 (V ACa 1274/17), that the lack of the attribute of the owner on the part of the seller does not result in the invalidity of the sales contract, but the seller’s liability for a legal defect.
The amendment to the provisions of the Civil Code was accompanied by amendments to the Act on Consumer Rights. The basic provisions on consumer warranty have just been transferred to the Act of 30 May 2014.