Complaints when selling between entrepreneurs

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Complaints are often associated only with the consumer vs. seller. Contrary to appearances, the provisions of the Civil Code relating to this issue also apply to sales contracts concluded between entrepreneurs. It is worth emphasizing that the entrepreneur is entitled to a complaint of defective goods by virtue of the law itself, i.e. without additional reservations contained in the sales contract. However, one should remember about the differences that occur when complaining about goods in professional trade.

Consumer and entrepreneur

The distinction between the concept of a consumer and a non-consumer entrepreneur is very important for the correct application of the provisions on the warranty. Despite the fact that both entities, as a rule, are entitled to the rights under the Civil Code due to liability for defects in the goods sold, their situation in this respect is not the same.

A consumer is therefore, in accordance with Art. 221 of the Civil Code, a natural person who performs a legal transaction with an entrepreneur not directly related to business or professional activity. An entrepreneur, in turn, is a natural person, a legal person or an organizational unit without legal personality, but equipped with legal capacity (e.g. a partnership), which conducts business or professional activity on its own behalf.

Importantly, a consumer may also be an entrepreneur who is a natural person, when he purchases an item that is not directly related to his business activity.

In practice, the most frequent decisive factor is whether the buyer required the seller to issue a VAT invoice documenting the purchase.

Possibility to modify the seller's liability rules or to exclude it

There is a rule in consumer trade that limitation or exclusion of liability for defects in the sold item is unacceptable, unless it is permitted by specific provisions. This is due to the need to protect the interests of the weaker party in the legal relationship - the consumer.

This rule does not apply to professional trade. The legislator has left entrepreneurs more freedom in creating binding rights and obligations. Therefore, the entrepreneur should pay attention to whether in the contract or in the general terms and conditions of sale applicable to him, there are no clauses changing the scope of liability of his contractor in the discussed scope or excluding the possibility of pursuing claims against him in this respect.

However, it is worth remembering that any modifications to the warranty rules will be ineffective if the seller deceptively conceals that the item sold has a defect.

Obligation to inspect the goods and notify about the defect

When selling between entrepreneurs, the buyer loses his warranty rights if he did not inspect the item in time and in the manner adopted for such items and did not immediately notify the seller of the defect, and if the defect came to light only later - if he did not notify the seller immediately after discovering it .

Immediately, i.e. at what time? The case law shows that there is no fixed time frame in this case. According to the Supreme Court: “It is impossible to assume a validity of a specific term here. Although it is usually indicated that the term "immediately" should be understood as a maximum period of fourteen days, nevertheless this period cannot be treated as a non-exception, because in the circumstances of a specific case, "immediate" notification of a defect may mean a slightly longer or shorter period ". [The judgment of the Supreme Court of February 7, 2008, V CSK 410/07]. It should therefore be the time required under the circumstances to prepare and send such a notice.

Art. 563 § 2 of the Civil Code also indicates that in order to meet the above deadline, it is enough to send a notification of the defect before its expiry. The notification may be made in any form, even orally. However, when we send them by letter, the moment of sending the parcel counts.

The period for notification starts running from the moment the defect is discovered.This fact is related to the second obligation incumbent on the entrepreneur - the obligation to examine the purchased item in a customary time and manner. So how should an entrepreneur behave?

The Civil Code does not answer this question. It may be helpful to refer to legal literature, where the scope and manner of performing the obligation to examine things are related to such circumstances as: type of sale (wholesale, retail, via the Internet), size of delivery, type of item (e.g. is it a production machine or clothing) ). It also points to a common-sense approach, knowledge of the entrepreneur and the fact that, as a rule, he should show care for his own economic interests. It is worth emphasizing that when purchasing in bulk, a random, representative test is sufficient. [M. Gutowski, Civil Code. Volume II. Comment. Articles 450–1088, ed. 1 2016]

The result of the entrepreneur's failure to comply with the above obligations is the loss of rights under the warranty. However, it is worth remembering that in accordance with the case law of the Supreme Court, the entrepreneur retains the right to demand compensation for the damage he suffered because he concluded the contract, not knowing about the existence of the defect. In particular, he may demand reimbursement of the costs of concluding the contract, the costs of collecting, transporting, storing and insuring goods, and reimbursing the expenses made to [Resolution of the Supreme Court of August 7, 1969, III CZP 120/68].

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The need to prove that the defect existed at the time the item was handed over to the buyer

In consumer trade, there is a rule that if the defect arose within one year from the date of purchase, the consumer is not obliged to prove that it existed at the time of handing over the item or is due to a reason inherent in the item sold at the same time. In the case of sales between entrepreneurs, this rule does not apply. The entrepreneur should therefore prove the above-mentioned circumstances.

Therefore, it is worth examining the item in detail upon delivery in terms of possible defects and documenting these circumstances in such a way that you can refer to them in the later complaint process (e.g. photograph the delivered goods, its packaging and external appearance after unpacking or film the collection process and packaging and first use).

The complaint and the lack of a specific deadline for consideration by the seller

If the buyer who is a consumer has requested replacement of the item or removal of the defect or submitted a statement on price reduction, and the seller has not responded to this request within 14 days, it is considered that the request was considered justified.

In professional turnover, the legislator did not provide for such a rule. The deadline and procedure for considering complaints may, however, result from the contract, general terms of sale or regulations. As a rule, however, the lapse of 14 days does not cause the buyer / entrepreneur the effects mentioned above in relation to the consumer.

Seller's right to refuse to repair or replace items

The general code rules provide for four parallel rights of the buyer under the warranty. It is therefore possible to request from the seller:

- price reduction,

- repairs,

- exchange of things for one free from defects.

The buyer also has the right to withdraw from the sales contract if the defect is significant.

However, the exercise of these rights is subject to certain limitations. First of all, the seller may refuse the buyer's request if the method of redress chosen by him is impossible to meet or would require excessive costs compared to another.

However, a special restriction has been provided for professional trading. The seller may refuse to replace the item with a non-defective one or to remove the defect also when the costs of implementing the right selected by the buyer-entrepreneur exceed the price of the item sold.