Presumption versus Definition of the Conformity of the Product with the Contract

• Authors: Koszowski Maciej
• Languages of publication: PL

Abstracts

EN

The article addresses the issue of the concept of the non-conformity of the product with the contract in the context of consumer sale. Specifically, it brings up the question whether the directive no. 1999/44/WE and the Polish statutes regarding consumer sale introduce the strict definition or the rebuttable presumption of the conformity of the product with the contract. That question is of paramount importance since the definition means here that in the circumstances outlined in the directive/statute acquired goods are in conformity with the contract and the consumer cannot prove the contrary. The presumption, in turn, is tantamount to the assertion that the occurrence of these circumstances indicates the state of the conformity with the contract, but not in the definite way. That is, the interested party may nonetheless make an effort to establish that the product does not conform to the contract. Despite the clear meaning of the pertinent provisions of the statute and directive, most of Polish scholars maintain that, in consumer sale, we deal with the definition of the non-conformity of the product with the contract. The Author strongly disagrees with them, arguing for the concept of the rebuttable presumption. However, according to him, due to the need of legal certainty and efficacy, the rebuttal should be possible here only in exceptional cases. Incidentally, the same concerns the proving of the conformity of contract when not all of the circumstances mentioned in the presumption are present.

Keywords

EN

contract law; consumer sale; conformity of the product with the contract

• Publisher: Instytut Nauk Prawnych PAN / Institute of Legal Studies PAN
• Journal: Studia Prawnicze
• Year: 2012
• Issue: 1 (190)
• Pages: 57-67

Contributors

author

Koszowski Maciej

• Wyższa Szkoła Biznesu w Dąbrowie Górniczej, Zygmunta Cieplaka 1c, 41-300 Dąbrowa Górnicza, Poland