Νομολογία

  • Στοιχεία της υπόθεσης
    • Εθνικός αναγνωριστικός αριθμός: No. of protocol 7710
    • Κράτος μέλος: Ελλάδα
    • Κοινή ονομασία:N/A
    • Είδος απόφασης: Άλλο
    • Ημερομηνία απόφασης: 04/04/2014
    • Δικαστήριο: Συνήγορος του Καταναλωτή
    • Θέμα:
    • Ενάγων: Unknown
    • Εναγόμενος: MARMARA MIKELI COMMERCIAL AND INDUSTRIAL COMPANY
    • Λέξεις-κλειδιά: conformity with the contract, consumer rights, defective sample, passing of risk, poor quality
  • Άρθρα της οδηγίας
    Consumer Sales and Guarantees Directive, Article 2, 1. Consumer Sales and Guarantees Directive, Article 2, 2. Consumer Sales and Guarantees Directive, Article 2, 2., (a) Consumer Sales and Guarantees Directive, Article 2, 2., (b) Consumer Sales and Guarantees Directive, Article 2, 2., (c) Consumer Sales and Guarantees Directive, Article 2, 2., (d) Consumer Sales and Guarantees Directive, Article 2, 3. Consumer Sales and Guarantees Directive, Article 2, 4. Consumer Sales and Guarantees Directive, Article 2, 4., - Consumer Sales and Guarantees Directive, Article 3, 1. Consumer Sales and Guarantees Directive, Article 3, 2. Consumer Sales and Guarantees Directive, Article 3, 3. Consumer Sales and Guarantees Directive, Article 3, 5. Consumer Sales and Guarantees Directive, Article 3, 5., - Consumer Sales and Guarantees Directive, Article 3, 5., - Consumer Sales and Guarantees Directive, Article 3, 6. Consumer Sales and Guarantees Directive, Article 5, 3.
  • Περίληψη
    (1) Goods which are delivered to the buyer are presumed not to be in conformity with the contract if they:
    (a) do not comply with the description given by the seller or with the sample or the model that the seller had shown to the buyer.
    (b) are not fit for the purpose of the contract and in particular for the intended use, according to their purpose ( a and b are subjective criteria)
    (c) are not fit for the use for which goods of the same category are normally intended;
    (d) do not have the quality or the performance which the buyer can reasonably expect from goods of the same category, taking into account the public statements of the seller, the producer or his representative, particularly in the context of the relevant advertising or labeling, unless the seller neither knew nor should have known the relevant statement (c and d are objective criteria).

    (2) The right to repair or of replacement constitutes an auxiliary claim to the initial claim of fulfillment of the contract. The price reduction right, which redefines and adapts the originally agreed price in the value of the defective product as well as the withdrawal right, that cancels entirely the initial contract of sale, constitute formative rights; their exercise shape a new legal situation between the parties. The aforementioned rights are exhausted only when they lead to the full satisfaction of the buyer.

    (3) The right of withdrawal is exercised:
    - with an informal unilateral extrajudicial statement of the buyer to the seller or
    - with an objection, or
    - with a claim.

    (4) The seller is liable, regardless of fault, in case the product has defects or lacks any of the agreed properties at the time of the passing of the risk to the consumer. The passing of risk determines which rights the buyer can exercise.

  • Πραγματικά περιστατικά
    The plaintiffs bought a marble kitchen bench from the defendant. The defendant proposed the black marble of Edessa as the most appropriate material for a kitchen bench. However, after the materials were placed, several defects became apparent (irregularities in the polishing bench, large parts of it were unpolished, there were differences in color and visible places of high concentration of polishing / impregnating material, the marble had direct corrosion when coming into contact with kitchen materials of daily use resulting in immediate discoloration, a crack appeared on the bench top). Following the plaintiffs’ notice, the defendant tried to repair the defects, but also charged this service. Nevertheless, the defects appeared again and therefore the defendant promised to repair the bench within a month or replace it. When the one-month period was over, the defendant coated the marble with pure polyurethane, but once more, the coating failed. The plaintiffs filed a complaint to the Ombudsman, followed by an exchange of letters in an attempt to reach a resolution. In this context, a meeting was set between the parties at the Ombudsman‘ s premises, where the defendant suggested either to repair the marble or replace it with black granite, for which there would be an extra charge. The plaintiffs rejected the defendant’s proposal and demanded to either have the marble replaced with a material of their choice or get a refund.
  • Νομικό ζήτημα
    (1) When are the goods in conformity with the contract of sale?

    (2) What is the nature of a) the right to repair or of replacement and b) of the right of reducing the price or the right of withdrawal? Does the exercise of one right exclude the exercise of another?

    (3) How is the right of withdrawal exercised?

    (4) What is crucial for the seller’s liability towards the buyer, regardless of fault and why?

  • Απόφαση

    The product is defective, both subjectively, i.e. in relation to what the parties agreed upon (sample) and objectively (reasonable expectation), compared with a new identical product, according to the rules of logic of an average prudent consumer. In addition, the product is inappropriate for the intended use and this has also a negative effect on the value of the product. Therefore, the product sold does not meet the requirements of the contract and thus the plaintiffs have, alternatively and optionally, the rights to repair and/or of replacement, the right of withdrawal or the right to ask for the reduction of the price. Since, therefore, the more moderate remedies of repair and replacement appear inadequate to fulfill the intended purpose in the specific case, the plaintiffs rightly exercise their right of withdrawal from the sales contract.

    URL: http://www.synigoroskatanaloti.gr/docs/reports/2014-04-04.%CE%A3%CF%8D%CF%83%CF%84%CE%B1%CF%83%CE%B7-Marmara-Mikeli.pdf

    Πλήρες κείμενο: Πλήρες κείμενο

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  • Αποτέλεσμα
    The court recommended to the defendant to remove the bench from the plaintiffs’ kitchen and reimburse the whole amount that was already paid by the plaintiffs. It also called the defendant to notify in writing, whether it accepts the present recommendation. (plaintiffs’ request was granted).