Mutual relations between the buyer's rights arising from the warranty for defects in the goods sold, the quality guarantee and the seller's liability for improper performance

In case of a defect in the goods sold to the buyer, both the warranty rights for defects and the quality guarantee (if the seller provides a guarantee). The buyer may also exercise the rights deriving from the seller's liability for the improper performance of the undertaking. What are the different powers and the relationship between them?

Characteristics of individual purchasing rights

By way of introduction, the buyer's rights related to the finding of a defect in the sold item will be described below, i.e. the rights under the guarantee, guarantees and liability of the seller for the breach of the obligation.

Guarantee for defects

The liability of the warranty is that the seller is responsible to the buyer if the sold item has a defect [1] . The general definition of the defect is set out explicitly in the legislation, which also indicates examples of the conditions for qualifying the defect.

This is therefore a non-compliance of the goods sold with the contract and the goods sold is incompatible with the contract in particular where (1) there is no jurisdiction that such a thing should have by reason of the purpose in the contract identified either by circumstances or by destination, (2) there are no properties that the seller has provided to the buyer, including a sample or a pattern, (3) is not suitable for the purpose which the buyer informed the seller when the contract was concluded and the seller did not object to its intended purpose or (4) was issued to the buyer in incomplete condition [2] .

The item sold has a defect also in the event of incorrect installation and commissioning, if these operations were performed by the seller or person third, for which the seller is liable, or by a buyer who has acted in accordance with instructions received from the seller [3] .

A sale may also be affected by a legal defect, as is the case where it is owned by a person third, is governed by the law of a person third or a restriction in the exercise or regulation of a thing is due to a decision or decision of the competent authority, and in the case of the sale of a right, a legal defect consists in the absence of a law. Other defects are physical defects [4] .

It is only necessary to comply with the conditions for liability under the warranty. This liability is absolute, not dependent on the fault of the seller or the person by whom the seller performs his obligation.

There are no conditions in the regime of liability under the warranty to exempt the seller from liability, which is sometimes called absolute liability.

Furthermore, the liability of the warranty also does not depend on the seller's knowledge of the disadvantage of the thing (this knowledge may, however, exacerbate or exclude the seller's contractual modifications if the seller sneakly conceals the defect from the buyer).

The doctrine also sees the view that the liability for the warranty comes on a risk basis.

It is worth noting that in the science of civil law, there is a difference in absolute liability and in liability on the basis of the risk that there is no possibility of exemption from absolute responsibility by demonstrating that the damage was caused by the sole fault of the injured person or person third, for which the obliged person is not liable.

Exonertive reasons exclude liability on a risk basis, and in the case of absolute responsibility, their occurrence is indifferent [5] .

With regard to the rights of the buyer resulting from the warranty, the buyer may submit a statement of price reduction (the reduced price should remain in such proportion as to the price resulting from the contract in which the value of the item with the defect remains to the value of the thing without defect) or withdrawal from the contract (which may not be withdrawn from the contract if the defect is irrelevant) unless the seller immediately and without undue inconvenience to the buyer mentions the item with the defect free from the defect or the defect removes (the limitation does not apply if the item has already been mentioned or corrected by the seller or the seller has not made the obligation to exchange the goods free from defects or to remove the defect) [6] .

Regardless, if the item sold has a defect, the buyer may request the exchange of items for defects free or the removal of defects. [7] .

Guarantee

The buyer's rights associated with the defects of the sold item can also generate a quality guarantee. However, it is optional, dependent on the will of the seller, a means of protecting the buyer in the event of a defect in the item sold.

The guarantee shall be granted by submitting a guarantee declaration which sets out the obligations of the guarantor and the rights of the buyer where the sold item does not have the characteristics set out in that declaration. Importantly, a guarantee declaration may also be submitted in advertising [8] .

The obligations of the guarantor should be stated explicitly in the guarantee document. In particular, they may consist of reimbursement of the price paid, exchange or repair of goods and the provision of other services [9] .

In the event of doubt, it should be assumed that the guarantor is obliged to remove the physical defect of the item or to provide the item free of defects, provided that the defect is revealed within the time limit specified in the guarantee declaration [10] .

The guarantee is granted through a unilateral legal act of the guarantor and it is not necessary to make a declaration of will by the buyer. The guarantee does not constitute a contract between the guarantor and the buyer, nor does it create any obligations for the buyer.

The legal nature of the guarantee is similar to the nature of the public pledge as it is also a unilateral legal act leading to an obligation. Importantly, any entity may be a guarantor, but it is usually a seller or producer.

The guarantee rights may in turn be exercised by the buyer and any other person who will later own the property and to whom the buyer has transferred the guarantee rights [11] .

It should be stressed that one it is clear from the mandatory elements of the guarantee declaration that, in the absence of conformity of the goods sold to the buyer's contract by law, legal protection by the seller and at the expense of the seller and that the guarantee does not affect those legal protection measures [12] .

Liability for breach of the obligation

The last basis for the buyer's claims in the event of a defect in the goods sold is the seller's liability for the improper performance of the undertaking. The debtor is obliged to make good the damage resulting from the default or breach of the obligation, unless the failure or improper execution is a consequence of circumstances for which the debtor is not liable [13] .

The contractual liability of the debtor is a type of compensation claim in the event of default or inadequate performance. The characteristic of contractual liability is the source of its possible origin, i.e. an obligation that exists before the contractual liability conditions are updated.

The bond between the debtor and the creditor is a contractual liability. It is important from the point of view of the buyer that contractual liability benefits from the presumption of guilt of the debtor.

The creditor is not obliged to indicate the debtor's fault, but only to indicate the circumstances of failure to perform or to execute the obligation. In the context of a sale agreement resulting in an improper execution, i.e.

the existence of a defect in the goods sold, the liability of the seller shall be updated, that liability shall depend on the existence of certain conditions, i.e.

the damage suffered by the buyer, the undue performance of the undertaking due to the circumstances for which the seller is liable, and the causal link between the fact that the undertaking has been unduly implemented and the damage [14] .

Modifications of liability

In the context of possible changes to the seller's liability for the warranty of defects in the sold item, it is possible to modify them. The Parties may extend, restrict or exclude this responsibility.

However, where the buyer is a consumer, the restriction or exclusion of liability under the warranty shall be permitted only in cases specified in the specific rules [15] . However, the exclusion or limitation of liability under the warranty is ineffective if the seller has deliberately withheld the defect from the buyer [16] .

In this context, it should be stressed that the legal standards resulting from the guarantee provisions are of a relatively binding nature ( ius dispositivum ). The liability of the seller under the warranty may be extended, restricted or excluded in the sales contract.

The exclusion or limitation of liability under the warranty means the exclusion by the parties in the contract of application (all or some) of the warranty provisions. Such provisions of the sales contract will lead to a situation where the liability of the seller under the warranty does not arise at all or arise to a certain extent.

However, in such a case, the parties to the contract will not determine the conditions for the performance of which will mean the release of the seller from liability under the warranty, and this position results from the absolute nature of the liability under the warranty.

Modifications of liability under the warranty may relate to what (for a physical or legal defect or individual characters) and how long the seller is liable to the buyer, but not to what rights the buyer has in the event of a defect in the goods sold.

The concept of liability concerns what, what and how the debtor is liable to the creditor.

The parties may modify the content of the rights of the buyer in relation to the liability of the seller under the warranty, but this possibility arises from the mere property nature of those rights and not from the legal standard resulting from the above standard. [17] .

The possibility of extending, limiting and excluding liability under the warranty of defects of the sold item is an expression of the dispositive nature of the warranty provisions and is based in principle on the freedom of contract.

However, the modification of the guarantee rules should be made in the contract and should contain clear solutions [18] . In order to be effective in modifying liability under the warranty, it is necessary that the parties in the contract clearly communicate the will of such changes.

Restrictions, extensions or exclusions from the warranty cannot be presumed to any extent; this must be due to the content of the contract [19] .

In the context of the possibility of modifying liability for breach of the obligation, the debtor may, by contract, assume liability for failure to perform or for improper execution of the obligation due to specified circumstances for which he is not liable under the Act.

However, it is important to state that the debtor will not be liable for the damage which he can intentionally do to the creditor [20] . It is therefore acceptable, for example, to reserve in the contract the right of the creditor to demand a penalty in the event that the debtor fails or fails to comply with the obligation.

It follows from the freedom of the parties to the contract that the debtor may assume guarantee liability on a risk basis or even as a case [21] .

Due to the willingness of the seller of the guarantee, the question of the possibility of extending, limiting or excluding the rights resulting from it will not apply.

Relationships between different powers

The relationship between the guarantee and the warranty rights for the defects of the sold thing should be highlighted by the independence aspect. Namely, the buyer may exercise allowances for non-conformity of the goods sold to the contract regardless of the rights deriving from the guarantee.

The exercise of the rights of the guarantee shall not affect the liability of the seller for non-compliance with the contract.

However, in the event that the buyer exercises the rights from the guarantee, the period for exercising the rights for non-compliance with the contract shall be suspended from the date of notification of the defect to the seller.

That period shall run from the date of refusal of the guarantor to fulfil the obligations arising from the guarantee or the unsuccessful expiry of the time period for its performance [22] .

The rules on warranty for defects are an instrument for protecting the interests of the buyer (although not the sole one). These provisions consist of a specific legal regime safeguarding the interests of the buyer in the event of a defect being detected.

This regime is independent of both the general rules on compensation liability (contract and non-licensive) and the rules on quality assurance.

This means that the buyer has the option to choose relatively freely the rules for the enforcement of the seller's liability according to the circumstances of the case and according to the results of the calculation of the disadvantages and advantages of each of the above regimes of the seller's liability [23] .

In some cases one The defect that will be revealed in the sold item can be assessed both by the regime of liability for the warranty and warranty. This is the problem of the coincidence of liability for defects.

In such a case, it is not acceptable for the buyer to demand at the same time two various benefits under each of the regimes of liability for defects. The buyer may choose the legal basis of his request, which prejudges the vote one the regime of liability for defects.

However, this is not a definite choice in the sense that the exercise of the rights of the guarantee does not affect the liability of the seller for the warranty [24] .

The rightholder is bound by the choice of the individual revealed defect one to two the regimes mentioned, with the more restrictive view that this choice binds to the end of the proceedings concerning this defect [25] . It should be stressed that when choosing rights with guarantees, the buyer loses warranty rights in any case [26] .

Similarly, when selecting warranty rights, the buyer loses the warranty rights. It is therefore unacceptable to interpret that ‘independently’ means ‘concurrently’ or to exempt the buyer from deciding whether it is more advantageous to exercise the rights from the guarantee or the guarantee [27] .

As an example, the performance of the warranty rights for defects in the sold item can be shown to be effective once the guarantor has failed to fulfil the obligations arising from the guarantee.

In particular, withdrawal from the contract due to a defect in the goods sold during the duration of the guarantee shall take effect once the time necessary in the normal course of proceedings for the repair or exchange of goods has elapsed and its repair or replacement has not taken place [28] .

It is worth noting that if, because of a physical defect in the goods sold, the buyer has made a declaration of withdrawal from the contract or of lowering the price (and, as appropriate, if the goods are supplied free of defects instead of the defective thing or the removal of the defect by the seller), he may demand compensation for the damage he has suffered because he has concluded the contract without knowing that there is a defect, even if the damage is due to circumstances for which the seller is not liable.

In particular, it may require reimbursement of the costs of contract conclusion, collection, transport, storage and insurance of goods and reimbursement of the expenditure incurred in so far as it has not benefited from those expenses. This does not prejudice the rules on the obligation to make good damage under general rules.

[29] , and concerns, as appropriate, the finding of a legal defect in the goods sold [30] .

The above standard establishes the principle that, in the event of the exercise of the rights deriving from the warranty, the buyer may in addition request compensation by the seller within the so-called negative contractual interest.

It covers the damage suffered by the buyer as a result of the conclusion of the contract and the lack of knowledge of the existence of a defect. This calculation is exemplary. The purchaser may first of all seek compensation for losses incurred, but it is also not possible to claim compensation for losses.

However, a claim for compensation may not cover losses or losses resulting from the failure to supply contract-compliant items (so-called positive contractual interest) [31] . This compensation liability of the seller is not absolute. In addition to the existence of a defect, the buyer must prove the other grounds for compensation, i.e.

the fact of the injury and the causal link between the defect and the injury. The seller may exculpate that the damage is due to circumstances for which he is not responsible [32] .

Such a claim is also not a ‘reciprocal’ claim, but it is a separate contractual liability claim that can be declared as a stand-alone claim, based on the principles of contractual liability or accompanying the exercise of rights with a guarantee [33] .

To this end, the legislator introduced only to stress that the exercise of the warranty does not exclude the investigation of other claims resulting from the contract concluded, in particular compensation claims.

There are no obstacles to a buyer who does not withdraw from the contract or demand a lower price being able to claim for improper performance of the sale contract.

It may even be the same as those provided for in the warranty rules, since the differences between them relate mainly to a wider catalogue of claims, a broader scope of responsibility (in the case of warrants, even showing that the damage is due to circumstances for which the seller is not responsible, does not exclude his liability within the limits of a negative contractual interest) and the time in which they can be obtained and the effects of the expiry of the deadline [34] .

Compensation claims in the contractual liability regime may be made independently of claims under warranty rules [35] .

However, in order to apply the contractual liability regime, it is necessary to demonstrate the condition of damage, whereas under the warranty liability, he is only obliged to demonstrate the existence of a defect in the purchase of the object. [36] .

It should be noted that the liability of the person liable to be assessed by the prism of the provisions on contractual liability has a wide scope, since it is excluded only if it is shown that the defects of the sold item arise from the case, the fault of the person third, misuse of goods, lack of proper maintenance, misuse of use or handling, etc.

[37] .

The liability provisions of the guarantee do not remain in relation to lex specialis – lex generalis with respect to liability provisions in respect of an act that is not permitted or that does not comply or that the obligation is not properly executed.

These rules do not therefore exclude the application of the rules on non-licensed and contractual liability in the event that the seller is liable for damage to the conclusion or execution of a sale contract, but are complementary to those general provisions.

The liability of the seller for the warranty is to lead to a broader than general safeguarding of the interests of the buyer, which operates on the basis that the value of the item sold corresponds to the value of the price paid in return [38] .

As indicated above, there are also different deadlines for the exercise of the rights of the buyer, which may also affect its choice.

The seller is liable for the warranty if a physical defect is found before expiry two years and when it comes to property defects – before the end five years from the date of issue of the goods to the buyer, and the claim for removal of the defect or exchange of the goods sold free of limitation shall be made at the end of the year, from the date on which the defect was established.

In addition, in the event of an investigation before a court or a court of arbitration one in respect of the warranty rights, the time limit for the exercise of other rights conferred on the buyer for that purpose shall be suspended until the final termination of the procedure. [39] .

In the event of liability for breach of the obligation, the limitation period shall in principle be six years, and for interim and business claims, three years. However, the end of the limitation period shall be at the last day of the calendar year, unless the limitation period is shorter than two years [40] .

The term of the guarantee, in the absence of a different reservation, is in turn two years from the day the item was issued to the buyer. However, it is possible for the seller to indicate any other time limit [41] .

From the point of view of the buyer, it is important that if, in the performance of his duties, the guarantor has provided the rightholder with a guarantee instead of a defective thing free of defects or has made substantial repairs to the property covered by the guarantee, the term of the guarantee shall run again from the delivery of the item free of defects or the return of the item repaired.

In other cases, the term of the guarantee shall be extended by a period during which, as a result of a defect in the goods covered by the guarantee, the guarantee entitled could not be used [42] .

Regulations on liability for damage caused by a dangerous product

An appropriate reference to the provisions on guarantees and a mutual relationship with the other grounds of liability of the seller for the defectiveness of the goods sold can also be found in the provisions on liability for damage caused by the dangerous product.

The liability for damage caused by a dangerous product is that who produces dangerous products in the field of his business (manufacturer) is liable for damage caused to anyone by that product.

The product is understood to be mobile, even if it is combined with another thing (including animals and electricity) and dangerous is a product that does not ensure the safety that can be expected, taking into account normal use of the product [43] .

Importantly, liability for damage caused by a dangerous product cannot be excluded or reduced [44] .

The provisions on liability for damage caused by a dangerous product shall not exclude liability for damage on a general basis, for damage resulting from failure or inadequate performance of the undertaking and for liability for defects and quality guarantees [45] .

It should be noted that damages claims governed by the rules on liability for damage caused by a dangerous product may coincide with claims against other unlawful acts ( liability under general rules), as well as claims for damages due to failure or inadequate performance of the undertaking and with rights of guarantee for defects and quality guarantees .

This is due to the fact that damage to a dangerous product can also be a regulated event by the rules on the above liability grounds and give rise to the powers provided for there.

The standard in question stands in the position of free competition to claim compensation for damage caused by a dangerous product and all the above mentioned rights. The injured person may therefore claim damages on the basis of the legal basis chosen by him and may exercise the rights with guarantees and guarantees.

It must not only combine elements belonging to the design of different powers, which would result in the creation of unknown legal hybrids [46] .

Summary

In view of the above, if the buyer finds a defect in the goods sold, he is entitled to a number of protective rights for the seller.

In addition to the warranty for the defects of the sold item, the buyer may also, in the event of the seller granting it, benefit from the quality guarantee and also obtain claims arising from the improper performance of the undertaking by the seller on general terms.

The choice of the power to which the buyer will exercise belongs to him and may depend primarily on the ability to demonstrate the conditions of liability of the seller in the circumstances or time limits. The use of individual rights by the buyer is particularly independent.

Summary

Where the buyer finds defects in the goods sold, he shall be entitled to claim claims against the seller in respect of the warranty, the guarantee of quality (if the seller gives it to the buyer) or even the liability of the seller for the improper performance of the contract.

The differences between these claims relate in particular to different liability conditions and limitation periods. Nevertheless, the investigation of such claims should be independent. The article presents what the individual powers are and what the relationship between them is.

Author: Oliwia Wójcik

Legal advisor / Associate. She graduated from Maria Curie-Skłodowska University in Lublin. Graduate of Postgraduate Studies: Legal and Economic Basics of the Investment Process organized by the School of Economics. She gained her professional experience in Lublin and Warsaw law firms. It deals with economic and commercial law, in particular business reorganisation processes. He has extensive experience in representing clients before general courts.