As part of Romania’s continued movement towards a fully integrated European Union country there has been a steady movement towards increasing consumer protection. Suppliers of goods and services have become aware of the duties they owe their customers whether they be private individuals or a commercial buyer.
The legislation covering the liability of suppliers is contained in the Civil Code, Law no. 449/2003, regarding the sale of goods, Law no. 240/2004, regarding the liability of manufacturers for damage caused by defective products and Ordinance no. 21/1992 on consumer protection.
Law no. 449/2003 relates specifically to the sale of goods and subsequent warranties. It defines a warranty as “any commitment made by the seller or producer to the consumer, without requiring additional costs the refund of the price paid by the consumer, or of the repair or replacement of the product purchased, if the product does not meet the conditions set forth in the statements related to warranty or advertising”. Under the provisions of this law, durable products and non-food products no longer have a different legal regime, all products are subject to the same law.
The warranty is binding on the seller who is obliged to deliver goods and products in accordance with the contract for sale; the seller being liable to the consumer if they do not comply at the time with the contract when the products are delivered.
Law 449/2003 regulates the conditions to be met for a product to be considered in accordance with the contract. The law requires the product to match a) The description given by the seller and be of the same quality as the products which the seller showed to the buyer as a sample or model, b) if it is to be for any specific purpose or requirements as requested by the consumer, provided the purpose was made known to the seller and accepted at the time of the contract; and c) be similar to other products which are of the same type, and are of the same quality and normal performances which a consumer could reasonably expect, given the nature of the products and the statements made by the seller including those on a label or in any advertising of the product.
In the case of a lack of conformity, the consumer is entitled to require the seller to repair the product or to replace it without payment unless that is impossible or is a disproportionate measure.
The measure chosen by the buyer is considered impossible if the seller cannot provide the same product or replacement parts for repair due to the lack of equipment or related technology. Further, the measure is considered disproportionate if the costs incurred by the seller are not reasonable in comparison with any other remedy or the original price.
In all cases, the remedy must be completed in a reasonable period of time as agreed between the consumer and the seller. This period cannot exceed 15 calendar days from the date when the seller was informed about the lack of conformity with the description of the goods.
The period of the warranty is two years calculated from the date of delivery of the product. For products where the average length of use is less than two years, the term of the warranty is reduced. In the case of used products, the buyer and seller may agree a shorter period than two years but in any event not less than one year from the date of the delivery. The buyer is obliged to inform the seller of the breach of warranty within two months from the date of its discovery by the buyer.
The law provides in addition to the warranty given under the law for a seller to give its own warranty which can be in any warranty statement and related advertising of the Seller which will become legally binding when it is given. A warranty given by the seller must contain references to the rights given by law and state that these rights are not affected by any warranty of the seller. Although not expressly mentioned the law does not stipulate that the seller’s warranty should offer additional benefits to the consumer.
Any warranty offered declared as such in the warranty statement or in any other document is legally binding under the conditions as set out in those documents.
The provisions of the Civil Code are additional to those in the Law and also include provisions against hidden defects in goods and their proper usage. Hidden defect are defects which at the date of delivery could not be discovered by a prudent buyer without specialized assistance. Not every defect will trigger the seller’s liability. Hidden defect relates only to deficiencies that make it unsuitable for its intended use. The warranty is applicable in all varieties of sale, except forced sales.
The seller is required to give a warranty against hidden defects even when he did not know about them unless there is a contrary clause to this effect and which is known by the buyer. In cases where there is a liability for hidden defects, the buyer may require the repair of the defect by the seller at its own expenses, the replacement of the goods with another without the defects, a reduction of the price, or cancellation of the sale.
The seller has several options related to the seriousness of the defect. If the measure chosen by the buyer is disproportionate to the benchmarks provided for in the legal provisions, the court may order another measure. If the seller did not know about the defects he must only repay the price and the expenses incurred during the sale. If the seller knew about the defects he will be required to pay damages if there are any. The buyer is obliged to inform the seller about any hidden defects within the period stipulated by contract or if none is specified then within a reasonable period. For a professional buyer, the Civil Code fixed a period of two days.
The Civil Code also provides that for sales between professionals, the seller may give a warranty for a limited period. During the period the seller has the obligation to repair the goods at its own expense. There are two exceptions to this rule, namely if the repair is impossible, or if the period of repair exceeds the time set by contract or by a special law. In the absence of such provisions, the maximum duration of repair is fifteen days from the date when the buyer made the request. If these exceptions apply the seller is obliged to replace the goods, in exchange for the defective goods. From our interpretation of art. 1716 Civil Code the repair is done in a certain way and the buyer not having the possibility to choose.
Under the provisions of law no. 240/2004 concerning the liability of manufacturers for damage caused by defective products the buyer can claim compensation for both current and future damages within three years from the date when the buyer has or ought to have knowledge of current damage but for no more than ten years from the date when the manufacturers put the product in circulation.
Romanian consumers now have a greater chance of enforcing their rights but first, they need to be aware of them. The important thing is to have the consumer’s position examined at the earliest opportunity.
Ana-Maria Alexandru
Nicholas S Hammond