- By Paul SITGES
On January 1, 2022, the new wording of the General Law for the Defence of Consumers and Users and other complementary laws (hereinafter, the Consumer Law) came into force, adopting a new model that provides greater and broader guarantees to Consumers and Users in the purchase of products, as well as for digital services. The aforementioned Law has been modified after Royal Decree-Law 7/2021, of April 27, which transposes several Directives of the European Union in various sectors and areas, so, below, we will comment on the different novelties about the terms to exercise the corresponding rights and on the different modifications of this regulation.
When does this Law apply?
The studied Law will be applied in the relations between consumers or users and businessmen, so to be said, in those relations in which the seller is a professional and the buyer is a natural person that does not assign the bought products to any economic activity. If you have bought a second-hand product from an individual, the Consumer Law and the guarantees established by law do not apply, but that does not mean that there is a lack of legal protection, since there are other legal resources that allow different actions against a seller that is an individual. In these last case scenarios of sales between individuals (natural person), we recommend you to read our post “The claim for hidden defects in a sale”.
Going into the changes in the Consumer Law, as the first novelty from this new wording, is that this rule will also apply to those contracts by virtue of which the entrepreneur supplies or undertakes to supply digital content or services, since a fourth paragraph to article 59 of the aforementioned Law has been added in this regard. Likewise, in article 59.bis, new definitions are added that facilitate the understanding of this new type of content and which we reproduce below:
- “Goods with digital elements”: any tangible movable object that incorporates digital content or services or is interconnected with them in such a way that the absence of said digital content or services would prevent the goods from performing their functions.
- “Compatibility”: the ability of the goods to function with devices (hardware) or programs (software) with which goods of the same type are normally used, without the need to convert the goods, devices (hardware) or programs (software), as well as the ability of the digital content or services to function with the devices (hardware) or programs (software) with which the digital content or services of the same type are normally used, without the need to convert the digital content or services.
- “Digital Content”: data produced and supplied in digital format.
Summing up, the norm adapts to the new times and is being regulated expressly and protecting legal business in which the objects are services and content in a digital format, as this could be software, videogames, videos and audios, cloud hosting, etc., for which the digital content that is being delivered in any type of format or physical support, as for those that are purely digital.
The entry into force of the Law and the requirements for the conformity:
The eight final provision of Royal Decree-Law 7/2021, as we already advanced at the beginning of this article, announces that the modification of the Consumer Law has entered into force as of January 1, 2022; therefore, it is already in force and applicable.
Through this new wording, it is established that the digital goods, content or services that the employer supplies to the consumer or user that meet the subjective and objective requirements that are due to each of these application areas will be compliant.
In this sense, to be in accordance with the contract, the goods and digital content or services must conform to the description, type of good, quantity and quality and have the functionality and other characteristics stipulated in the contract itself. Likewise, they must be suitable for carrying out the specific purposes for which they are usually intended to, as well as being delivered or supplied together with the corresponding accessories and instructions, as well as the installation or integration manuals and assistance to the consumer or user in the case of the digital. In addition, the next requirement is added, that the goods must be supplied with updates and, in the case of digital content, the possibility of being updated.
Another section to take into account is the article 115.quater, which establishes that the incorrect installation of the goods or incorrect integration of the digital content or services will be equated to a lack of conformity with the contract in two cases:
“a) The incorrect installation or integration has been carried out by the employer or under his responsibility and, in the case of a sale of goods, its installation is included in the contract.
b) The contract provides that the installation or integration be carried out by the consumer or user, has been carried out by him and the incorrect installation or integration is due to deficiencies in the installation or integration instructions provided by the employer or, in the case of goods with digital elements, provided by the employer.”
[Literal translation from Spanish]
The responsibility of the businessman and the options of the consumer or user
If the purchased good (vehicle, property, product, etc.) or digital content is not in accordance with the contract, to solve said deficiency, the consumer has the following rights to exercise:
1. Demand repair
2. In those assets that are admitted due to their nature, substitution (unless one of these two options is impossible or that, compared to the other measure, involves disproportionate costs)
Only in the event that the consumer, due to the nature of the lack of conformity, could not demand the repair or replacement, or this had not been carried out within a reasonable time or without major inconveniences for the consumer and user, is when two additional possibilities open up:
3. Demand a proportionate price reduction
4. Exercise the right to terminate the contract by express declaration, which implies returning the good and receiving back the price paid. It should be noted that the law establishes that the resolution will not proceed when the lack of conformity is of little importance.
The repair or replacement, as corrective measures that the law contemplates so that the goods are in accordance with the contract, must be free for the consumer, must be carried out within a reasonable period of time and must be carried out without major inconveniences, taking into account the nature of the asset or digital content in question
Although these are the possible actions that protect the consumer or user, we must highlight the new deadlines that are established to be able to exercise said actions and the deadlines to take into account so that the defects that appear can be claimed and that we detail below.
The Term in which the lack of conformity is manifested and the possibility of exercising the corresponding rights:
From article 120 of the Consumer Law onwards, the different periods are indicated in which it is possible to exercise the previous rights as long as the lack of conformity is manifested within the following periods:
In the case of the sale of goods or supply of digital content or services, the entrepreneur will be responsible for any lack of conformity that exists at the time of delivery and becomes apparent within a period of three years. This is the main difference with the previous legislation, since until December 31, 2021, the warranty period for new products was 2 years.
In second-hand goods (such as cars, motorcycles, etc.), the agreement between the parties will always apply, but in any case, it can never be less than one year, this being the mandatory minimum legal guarantee established by the Consumer Law for purchases of used products made from professional sellers. Therefore, the object of sale will be under warranty if the defect has appeared during the first year from delivery.
In order to articulate an extrajudicial or judicial claim, it is necessary to prove the facts on which the claim is based.
In terms of Consumer Law, however, there is a presumption that the deficiencies that occurred in the first two years from the delivery of the good, or during the first year in the case of digital supply, were pre-existing to the contract. This means that it will be up to the entrepreneur-seller to prove the contrary, that is, that those defects were not found at the time of sale. This greatly facilitates consumer testing
In second-hand goods, those defects that arise during the first year from delivery will be presumed to be pre-existing. Therefore, if the defect appears within the first year, the law considers that, unless the employer can prove otherwise, that defect pre-existed the sale.
Any questions about it? Have you bought a vehicle or any other good with a defect, anomaly or breakdown, whether new or second-hand, from a professional or businessman? Our office can help you. Contact our lawyers by making an appointment in person or use one of our online legal services so that one of our lawyers can advise you.