Developments regarding the sale of goods and their guarantees

Authors: Diana Gavra (senior associate), Silviu Vasile (senior associate), Georgiana Ghinescu (associate)

 

On 28 December 2021, the Government of Romania adopted the Emergency Ordinance no. 140/2021 on certain aspects concerning contracts for the sale of goods (“GEO 140/2021”), which entered into force on 1 January 2022. The Romanian GEO 140/2021 transposes Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods and, at the same time, repeals the previous legislation on the sale of goods and their associated guarantees, namely Law 449/2003.

The new regulation is consistent with the need for alignment with the European consumer protection framework and addresses the changes determined by the technological evolution and trade in goods that incorporate or are inter-connected with digital content or digital services. The most important aspects contained in GEO 140/2021 are summarised below:

  1. The period of the legal guarantee of conformity

As provided in the previous regulation, the guarantee period for a good is of 2 years from the time of delivery. It is interesting to note that, although the period proposed in the draft emergency ordinance submitted for public consultation was of 5 years, such period was not kept in the final form of the ordinance. However, unlike the previous regulation, GEO 140/2021 no longer provides for the possibility that the guarantee period for the goods whose average duration of use is less than 2 years can be reduced to such duration. Also, GEO 140/2021 no longer provides for the minimum period within which the consumer must inform the seller about the lack of conformity (the period provided in the previous regulation being of 2 months from the time it becomes apparent).

Furthermore, the new regulation is intended to support the final consumer and sets out the period for the presumption of the lack of conformity at the time of delivery of the good if such lack of conformity becomes apparent within 1 year from the time of delivery (compared to 6 months in the previous regulation).

An innovation on the goods with digital elements for which the sales contract provides for the continuous supply of digital content or digital services is that the seller is liable for any lack of conformity of the digital content or digital service that occurs or becomes apparent within 2 years, for the goods with an average duration of use of up to 5 years, respectively, within 5 years, for the goods with an average duration of use of more than 5 years. If the contract provides for a continuous supply for more than 5 years, the seller is liable for any lack of conformity of the digital content or service that occurs or becomes apparent within the period of time during which the digital content or service is to be supplied under the contract.

  1. Express regulations on the sale of goods with digital elements

As anticipated, GEO 140/2021 expressly regulates the framework on the trade in goods with digital elements, thus creating rights and corresponding obligations for consumers, respectively for sellers.

The goods with digital elements are defined as any tangible movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions. By way of example, the smart household appliances, mobile phones or smart watches may be included in this category of goods.

We note that GEO 140/2021 does not apply to the contracts for the supply of digital content or digital services, such as, to the cases where it is expressly agreed that the consumer purchases a smartphone without a specific operating system and the consumer subsequently concludes a contract for the supply of an operating system from a third party. The Emergency Ordinance 141/2021, which entered into force on 9 January 2022, contains provisions on contracts for the supply of digital content or digital services.

By creating a specific framework for the sale of the abovementioned goods, GEO 140/2021 sets out a series of obligations for the seller, such as the obligation to ensure that it has informed the consumer about the updates and that the consumer is provided with updates, including security updates, which are necessary to keep such goods in conformity. If, for example, a smart TV were advertised as including a particular video application, the seller who markets such product is required to inform the consumers who purchased the product about the updates of the video application.

  1. The objective and subjective requirements regarding the conformity of a good

GEO 140/2021 details the requirements for conformity of a product, which are formally described in the previous legislation. Thus, the requirements for conformity are divided into two categories, namely:

  • objective requirements for conformity, which set out a set of minimum requirements that the purchased good must meet, such as, that the good is of the quality and corresponds to the description of a sample or model that the seller made available to the consumer before the conclusion of the contract; and
  • subjective requirements for conformity, which refer to the qualities of the good based on the contractual provisions agreed with the consumer.
  1. Remedies for lack of conformity

Similar with the provisions of the previous regulation, when a lack of conformity becomes apparent, the consumer may be entitled to the repair or replacement of the defective product. However, contrary to the previous legislation, which regulated the consumer’s right to initially require repair of the product, GEO 140/2021 gives the consumer the possibility to choose between repair and replacement, unless the chosen remedy would be impossible or would impose disproportionate costs on the seller.

Furthermore, the new regulation clarifies and details the situations in which the consumer can request (and obtain) the reduction of the price for the purchased good or the termination of the contract whereby such good was purchased, in case of lack of conformity.

Moreover, GEO 140/2021 expressly provides for the consumer’s right to choose the remedy, if the lack of conformity becomes apparent within a short period after delivery, without exceeding 30 calendar days.

  1. Redefining the presumption of the lack of conformity

Although the previous regulation provided that the good could be qualified as compliant with the sales contract, if the consumer was not or could not reasonably have been aware of the lack of conformity, the legislation in force no longer contains this provision which leaves room for interpretation. Therefore, GEO 140/2021 provides that, in order for a good to be considered as compliant, the seller must explicitly inform the consumer at the time of the conclusion of the sales contract that a particular characteristic of the goods deviates from the objective requirements for conformity, and that the consumer must expressly and separately accept such deviation when concluding the sales contract.

  1. The commercial guarantee

Similar with the provisions of the previous regulation, GEO 140/2021 allows the granting of additional guarantees to consumers under the conditions set out in the guarantee statement or in the advertising available before the sale.

The novelties of GEO 140/2021 on commercial guarantees include the obligation of the seller to repair or replace the defective product within a maximum period of 15 calendar days (the previous legislation allowed the seller to establish this period) or the direct liability of the manufacturer for the commercial guarantee, if the manufacturer is the issuer of such commercial guarantee.

  1. Conclusions

The new regulation is welcome as it aligns Romania with the European consumer protection framework and, at the same time, addresses the developments generated by the technological progress.

On the other hand, it will be interesting to see how the new regulation will be implemented, in particular by reference to the different situations that may arise from the reporting of defects in complex products or from the interpretation of the provisions on the goods with digital elements or on the requirements for conformity.

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