Emergency ordinance (OUG) No. 140 on certain aspects of contracts for the sale of goods was published in the Official Gazette (Part I) No. 1245 of 30 December 2021.
The recently published regulatory act establishes the legal framework for sales contracts between the seller and the consumer, in particular rules on the conformity of the goods, corrective measures in the event of non-compliance, and the arrangements for implementing such corrective measures, as well as trade guarantees with a view to ensuring a high level of consumer protection and the proper functioning of the internal market.
Emergency ordinance (OUG) no.140/2020 shall apply to all contracts concluded from 1 january 2022.
Under the new provisions, since 2022, the guarantee obligation has been incumbent on several types of sellers than hitherto, including unregistered craftsmen and craftsmen
It is important to note that since 1 January Emergency ordinance (OUG) no.140 has also provided an extended definition of the concept of seller, this will lead to the status of guarantor, with all the obligations deriving from the law, and to the responsibility of some of the persons who so far, on the old regulations, got rid of obligations as the law text did not take them into account.
“point 18. Seller = any natural or legal person, whether public or private, who, in connection with the contracts covered by this emergency ordinance, acts, including through another person acting on behalf or on behalf of that natural or legal person, for purposes relating to the person’s commercial, industrial, craft or professional activity;’
We mention that the old provisions (contained in Law no. 449/2003) defined the seller as an authorized natural or legal person who sells products under the conditions of a contract concluded with the consumer.
We notice the fact that the new regulation waives the condition that the natural or legal person be authorized.
According to Emergency ordinance (OUG) no. 140/2021, any natural or legal person who acts for purposes related to the commercial, industrial, artisanal or professional activity of the respective person may be a seller. Therefore, the notion of seller is extended, and the warranty obligation is on more people than before January 1, 2022.
It is important to mention that the decree covers the issue of digital content and of goods with digital content.
In Emergency ordinance (OUG) no 140/2021 we find other important definitions:
- The manufacturer – the manufacturer of the goods, the importer of the goods into the European Union or any person presenting himself as the manufacturer or importer, by affixing his name, trade mark or other distinctive sign to the goods in question.
- consumer – any natural person who, in connection with the contracts regulated by this emergency ordinance, acts for purposes that are outside the commercial, industrial, artisanal or professional activity of the respective person;
- guarantor – the seller or producer of the goods sold to consumers;
- commercial guarantee – any commitment from the guarantor to the consumer, provided in the guarantee certificate or in the advertising available at the time or before the conclusion of the contract, in addition to the legal obligations of the seller regarding the guarantee of conformity, to reimburse the price paid or to replace, repair or maintain the goods in any way, if they do not meet the specifications or any other non-compliant requirement;
The guarantor is either the seller or the manufacturer, according to the same ordinance, but most of the obligations in the ordinance are placed on the seller, not the manufacturer.
The manufacturer appears as guarantor in case of that new type of commercial guarantee from Emergency ordinance (OUG) no. 140/2021 – guarantee of durability.
Repair or replacement of goods:
In accordance with Article 12, repairs or replacements shall be carried out under the following conditions:
(a) cost-free;
(b) within a reasonable period which may not exceed 15 calendar days from the time when the seller has been informed by the consumer of the non-conformity and which shall be agreed in writing; between seller and consumer, taking into account the nature and complexity of the goods, the nature and gravity of the non-conformity and the effort required to complete the repair or replacement;
(c) without significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer requested the goods in question.
Under the conditions in which the non-conformity is to be remedied by repairing or replacing the goods, the consumer makes the goods available to the seller.
The seller takes over the replaced goods at his own expense.
If a repair requires the dismantling of goods that have been installed in a manner consistent with their nature and purpose, before the non-compliance is found, or if those goods are to be replaced, the obligation to repair or replace the goods include the dismantling of the non-compliant goods and the installation of the replacement goods or the repaired goods or the bearing of the costs related to the disassembly and installation.
The consumer is not obliged to pay for the normal use of the replaced goods in the period preceding their replacement.
If the non-compliance is remedied by repair, the terms provided in art. 9 are extended with the time of non-functioning of the good, from the moment when the non-conformity was brought to the notice of the seller until the effective delivery of the good in a state of normal use to the consumer.
In the conditions in which the non-conformity is remedied by replacement, for the goods that replace the non-compliant goods, the terms provided in art. 9 start running from the date of replacement.
Another important aspect of Emergency ordinance (OUG) no 140/2021 refers to the price reduction, which is proportional to the decrease in the value of the goods received by the consumer compared to the value that the goods would have if they were in compliance.
Commercial guarantees– important aspects:
Any commercial guarantee gives rise to a legal obligation for the guarantor under the conditions established in the commercial guarantee certificate and in the associated advertisements, available at the time or before the conclusion of the contract.
Under the conditions provided by Emergency ordinance (OUG) 140 and without prejudice to any other legal provisions, if a producer offers the consumer a guarantee of durability for certain goods for a certain period of time, the producer is directly liable to the consumer, for the entire period covered by the guarantee of durability, for the repair or replacement of the goods in accordance with art.12 – The repair or replacement of the goods.
We mention that the manufacturer can offer the consumer more favorable conditions in the certificate of commercial sustainability guarantee.
If the conditions set out in the commercial guarantee certificate are less advantageous to the consumer than those set out in the associated advertisements, the commercial guarantee gives rise to a legal obligation under the conditions set out in the commercial guarantee advertising, unless, before the conclusion the contract, the associated advertisements were corrected in the same way or in a manner comparable to that in which they were made.
The commercial guarantee certificate is offered to the consumer, on a durable medium, at the latest at the time of delivery of the goods.
The commercial guarantee certificate shall be formulated in plain and intelligible language.
The commercial guarantee certificate must be drawn up in Romanian, without excluding its presentation in other languages.
The commercial guarantee certificate contains the following elements:
- a) a clear statement stating that the consumer is entitled to remedial action by the seller, free of charge, in the event of non-conformity of the goods and that such remedies are not affected by the commercial guarantee;
- b) the name and address of the guarantor;
- c) the procedure that the consumer must follow in order to obtain the implementation of the commercial guarantee;
- d) indication of the goods to which the commercial guarantee applies;
- e) the conditions of the commercial guarantee.
In case the non-conformity is remedied by repair, the period of time provided in the commercial guarantee of durability is extended with the time of non-functioning of the good, from the moment when the lack of conformity was brought to the notice of the guarantor until the effective delivery of the good. normal use to the consumer.
If the non-conformity is remedied by replacement, for the goods that replace the non-compliant goods, the period of time provided in the commercial guarantee of durability starts to run from the date of replacement.
Repairs or replacements during the commercial warranty period shall be carried out within a reasonable time which may not exceed 15 calendar days from the time the seller was informed by the consumer of the non-compliance and which is agreed in writing between the seller and consumer, taking into account the nature and complexity of the goods, the nature and gravity of the non-conformity and the effort required to complete the repair or replacement.
Legal basis: The OUG 140/2021 on certain aspects of contracts for the sale of goods;