PRIVATE LAW
IV. CONCLUSION
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When it comes to the repair and replacement, they must be free of charge and performed within a reasonable time[55]. However, the buyer must make the goods available to the seller, and the seller is obliged to accept them, and bear related costs. Also, the seller has the obligation to install the goods and even replace installed goods and must bear the costs of such removal and installation.
The buyer is entitled to a price reduction or termination of the contract when replacement or repair did not occur.[56] The buyer is entitled to terminate the contract only if he has previously given the seller additional reasonable time for contract fulfilment (Article 412(1) of the OA).
Also, the buyer need not allow a reasonable time if the seller has informed him that he will not fulfil the contract, or it is obvious from all circumstances that the seller will not fulfil the contract. The contract will be terminated ex lege if the contract is not fulfilled by the seller during the given additional time unless the buyer has explicitly declared that he maintains the contract to be in force.[57] Transposition of Directive 2019/771 has resulted in a special provision applicable only to consumer contracts. New Article 413a of the OA stipulates that if the seller fails to fulfil the contract in a reasonable time, the consumer is entitled to declare that the contract is terminated. This means that in consumer contracts termination of the contract depends on the consumer’s disposition.[58] It is not regulated how this disposition has to be done, for example if it has to be presented in a written form.[59] In general, this approach in consumer contracts is different from traditional legal solutions of termination of contract ex lege if the contract is not fulfilled in additional reasonable time. While transposing Directive 2019/771 the Croatian legislator kept some legal solutions on termination of contract such as the loss of the right to terminate the contract[60] and legal consequences of the termination which have been slightly changed.[61] Article 419(3) and (4) of the OA additionally stipulate that if the buyer has terminated the contract, the buyer must return the goods to seller at the seller’s expense, while the seller must reimburse the buyer.
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behaviour in the digital market. It can be concluded that the major difference between the private laws of member states lies in the regulation of buyers’ rights and the overall buyers’
position in case of a lack of conformity because of third party rights. Even from the point of view of Croatian private law, the consumer is not in the same position regarding his legal rights in case of a lack of conformity in the sale of goods with embedded digital content in comparison with his legal position in a contract for the supply of digital content and digital services.
However, the creation of a balance in the regulation of consumer and commercial contracts with the transposed norms did create some exceptions for commercial contracts and some exceptions for consumer contracts. Regulation of the seller’s obligation to update is maybe the most illogical legal solution because it only exists in consumer contracts. Also, when it comes to consumer contracts it is presumed that the supply of digital content and digital services is a part of a contract for sale. This presumption does not exist for commercial contracts. But if the contract for the supply of digital services and digital content is a commercial contract and a lack of conformity exists, the legal solution for this situation would also lead to the same norms which regulate the seller’s obligation under a contract of sale. The only difference is who will be responsible – the seller in the sale of goods or the provider of digital content and digital services in the supply of digital content and digital services. In the end, it has to be noted that it is unclear how relations between traders in chains of transactions will evolve in practice since the seller’s liability for a lack of conformity usually exists in a time frame of six months, while in the regulation of relations in chains of transactions the seller can pursue remedies towards the previous seller for two years after the risk passed from the previous seller to the seller pursuing the remedies.
[1] Obligations Act of 1978, Official Gazette SFRY 29/1978, 39/1985, 46/1985, 57/1989, Narodne novine / Official Gazette, 53/1991, 73/1991, 3/1994, 111/1993, 107/1995, 7/1996, 91/1996, 112/1999, 88/2001, 35/2005 (hereinafter: OA 1978), Articles 478 – 515 OA 1978.
[2] Official Journal L 26, 28.1.2005, p. 3–220.
[3] Official Journal L 171, 07.07.1999, p. 12-16.
[4] It was done through the Act on Amendments to the Obligations Act, published in Narodne novine 35/2005 and 41/2008 (Art. 400 – 429). The current Obligations Act was also published in Narodne novine / Official Gazette, 35/2005, 41/2008, 125/2011, 78/2015, 29/2018, 126/2021.
[5] Official Journal L 136, 22.5.2019, p. 28–50
[6] For more see: H. SCHULTE – NOLKE, C. TWIGG – FLESNER, M. EBERS, EC Consumer Law Compendium, The Consumer Acquis and Its Transposition in the Member States, Sellier, 2008, Germany, p. 407-451; Results of the Fitness Check of consumer and marketing law and of the evaluation of the Consumer Rights Directive, available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332, accessed on:
08.02.2018. Also, those new barriers become one of the main reasons for the new directive.
[7] See more: H. SCHULTE – NOLKE, C. TWIGG – FLESNER, M. EBERS, op. cit. p. 411, 412.
[8] P. KLARIĆ, M. VEDRIŠ, Građansko pravo, Narodne novine, Zagreb, 2014, p. 415-426.
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[9] Narodne novine / Official Gazette 126/2021. See: Art. 399a – 429 of the OA, I. MILOTIĆ, “Materijalni nedostaci u Noveli Zakona o obveznim odnosima iz 2021. godine”, Pravo i porezi, No. 12/21, p. 11-18.
[10] For example, the German legislature decided to change the German Civil Code (Bürgerliches Gesetzbuch from 18.08.1896, BGBl. I S. 42, 2909; 2003 I S. 738, with the last changes from 21 December 2021, BGBl. I S.
5252). See: T. PFEIFFER, „Die Umsetzung der Warenkauf-RL in Deutschland - Beobachtungen zu Sachmängeln und Aktualisierungspflicht“, Zeitschrift für das Privatrecht der Europäischen Union, vol. 18, no. 3, 2021, p. 120-128.
[11] Narodne novine / Official Gazette, 19/2022.
[12] This approach was, for example, taken in Italian and Spanish private law (except for Catalonia where the directive was transposed in the Civil Code). See: A. DE FRANCESCHI, “Italian Consumer Law after the Transposition of Directives (EU) 2019/770 and 2019/771”, Journal of European Consumer and Market Law, Volume 11, Issue 2, 2022, p. 72 – 76; E. ARROYO AMAYUELAS, “The Implementation of the EU Directives 2019/770 and 2019/771 in Spain”, Journal of European Consumer and Market Law, Volume 11, Issue 1, 2022, p.
35 – 40.
[13] Official Journal OJ L 136, 22.5.2019, p. 1–27.
[14] Narodne novine / Official Gazette 110/2021.
[15] See Art. 357 OA which regulates that those norms which regulate lack of conformity along with the sellers’
obligations apply to all contracts for consideration.
[16] Terms that are defined are: consumer, consumer contract, producer, digital content, digital service, compatibility, functionality, interoperability, durable medium, durability, free.
[17] See S. PETRIĆ, „Ugovorna odgovornost prodavatelja“ in: E. MIŠĆENIĆ et. al., Europsko privatno pravo – posebni dio, Školska knjiga, Zagreb, 2021, p. 33-35.
[18] Art. 590 of OA regulates that “under a performance contract, the contractor undertakes to carry out certain work, such as make or repair a thing, physical or intellectual work etc. in exchange for a price that the ordering party undertakes to pay”. Also, legal solutions for a lack of conformity regulated in Articles 604 – 611 OA apply to a construction contract. For more on those contracts see P. KLARIĆ, M. VEDRIŠ, op. cit., p. 537-543.
[19] Smart goods are defined as goods with embedded digital content or digital service which are necessary for the functionality of the goods (Article 400(5) of the OA). See: K. SEIN, ‘Goods With Digital Elements’ and the Interplay With Directive 2019/771 on the Sale of Goods, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3600137, last accessed: 29 May 2022.
[20] V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A. PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M.
VUKELIĆ, B. VUKMIR, Komentar Zakona o obveznim odnosima, Narodne novine / Official Gazette, 2014, p.
704.
[21] Some authors argue that goods sold in a public enforced sale are second-hand goods, which is a justification for this exception, but it should not be taken as a rule. See: V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A.
PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M. VUKELIĆ, B. VUKMIR, op. cit., p. 704.
[22] For example, see Article 404(3) of the OA.
[23] See I. KANCELJAK, „Određeni aspekti prodaje robe na digitalnom tržištu i preuzimanje u hrvatsko pravo“, in: J. BARBIĆ (ed.), Pravna zaštita pojedinaca na jedinstvenom digitalnom tržištu Europske unije, Hrvatska akademija znanosti i umjetnosti, Zagreb, 2021, p. 76.
[24] See R. SCHULZE, F. ZOLL, European Contract Law – third edition, Beck, Nomos, Hart, Baden-baden, Munchen, 2021, p. 221-228.
[25] Article 401 p. 1 of the OA.
[26] See I. MILOTIĆ, op. cit., p. 13, 14.
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[27] See P. KLARIĆ, M. VEDRIŠ, op. cit., p. 418; S. PETRIĆ, „Odgovornost za materijalne nedostatke stvari prema novom Zakonu o obveznim odnosima“, Zbornik Pravnog fakulteta Sveučilišta u Rijeci, Vol. 27, No. 1, 2006, p. 102-104.
[28] For more on third party rights see ROSENKRANZ, F., “Art. 10: Third-party rights”, in: SCHULZE, R.;
STAUDENMAYER, D. (ed.), EU Digital Law – Article-by Article Commentary; Baden-Baden, 2020, p. 186 – 198; R. SCHULZE, F. ZOLL, op. cit., p. 229.
[29] See ATAMER, Y., HERMIDAS, S., „Die neue EU-Richtlinie zum Verbrauchsgüterkauf“, Aktuelle Juristische Praxis, 29. Jahrgang, 1, 2020, p. 61.
[30] For example, French law already stipulates that the breach of intellectual right in such cases leads to nullity of contract. See SENECHAL, J., „The Implementation of the EU Directives 2019/770 and 2019/771 in France“, Journal of European Consumer and Market Law, Volume 10, Issue 6, 2021, p. 266.
[31] Article 430 – 437 of the OA. See P. KLARIĆ, M. VEDRIŠ, op. cit., p. 426 – 249.
[32] This problem has also been noticed by some other authors. In that sense see footnote 113 in S. PETRIĆ,
„Ugovorna odgovornost prodavatelja“, op. cit. p. 55.
[33] The Croatian legislator had the opposite approach while transposing Directive (EU) 2019/770 which has the same norm (Art. 10) and this norm has been transposed through Art. 11 of the ACD.
[34] Transfer of the risk or passing of the risk as a term existed in the earlier versions of the OA. This approach is also familiar in European private law. For example, see p. 55 of the Preamble and Article 20 of Directive 2011/837/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (Official journal of the EU, L 304, 22.11.2011, p. 64–88). Some authors explain it by emphasizing the gaining of physical possession, see R. CANAVAN, “Contracts of sale” in: C. TWIGG-FLESNER (ed.), Research Handbook on EU Consumer and Contract Law, Edward Elgar Publishing, Cheltenham, UK + Northampton, MA, USA, 2016, p. 281.
[35] See Article 11 of Directive (EU) 2019/771. For more on reversal of burden of proof see R. SCHULZE, F.
ZOLL, op. cit., p. 249-252.
[36] While transposing Article 11 of Directive (EU) 2019/771 each member state could provide even higher protection for consumers by introducing or by retaining a period of two years.
[37] For more on the purpose of the presumption and burden of proof see judgment of the European Court of Justice of 4 June 2015, C-497/13, Froukje Faber v Autobedrijf Hazet Ochten BV, ECLI:EU:C:2015:357, p. 54.
[38] See I. MILOTIĆ, op. cit., p 12.
[39] This does not mean that the knowledge of the seller has no legal impact. See Article 408(2) of the OA and later in this paragraph.
[40] When it comes to second-hand goods, the parties may stipulate a timeframe of one year, or even shorter in commercial contracts (Article 404(3) of the OA). But also, in all these situations, the contracting parties may stipulate an even longer timeframe (Article 404(4) of the OA).
[41] For more reasons for this option see I. KANCELJAK, “Reform of Consumer Sale of Goods and Associated Guarantees – Possible Impact on Croatian Private Law”, EU and Comparative Law Issues and Challenges Series (ECLIC), 2, 2018, p. 592, 596.
[42] See Article 7(3)(4) of Directive (EU) 2019/771.
[43] Article 408(2) of the OA and compare with V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A. PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M. VUKELIĆ, B. VUKMIR, op. cit., p. 702-704.
[44] This norm is created to implement Article 21(1) of Directive (EU) 2019/771.
[45] See Article 18 of Directive (EU) 2019/771.
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[46] Since this could be a whole chain of relations, it is possible that the seller’s seller will, under all those conditions, be liable (Article 422a (6) of the OA).
[47] This solution is quite interesting having in mind that in practice those relations will probably be B2B and liability in such contracts is only six months as previously discussed.
[48] Articles 423 to 429 of the OA, implementing Article 17 of Directive (EU) 2019/771.
[49] See V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A. PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M.
VUKELIĆ, B. VUKMIR, op. cit., p. 699, 700.
[50] Article 403 of the OA, see P. KLARIĆ, M. VEDRIŠ, op. cit., p. 420.
[51] Hidden lack of conformity is defined as a lack of conformity that could not have been discovered by usual inspection. Article 404 of the OA, see P. KLARIĆ, M. VEDRIŠ, op. cit., p. 420.
[52] I. KANCELJAK, “Reform of Consumer Sale of Goods and Associated Guarantees – Possible Impact on Croatian Private Law”, op. cit., p. 591.
[53] General rules on liability for damages are regulated in Article 1045 to 1110, 342 to349, for more see KLARIĆ, M. VEDRIŠ, op. cit., p. 583 – 643.
[54] Compare Articles 13(2) of Directive (EU) 2019/771 and 410(3) of the OA.
[55] During the presentation of possible novelties in the Croatian Parliament (Hrvatski sabor), a part of the discussion concerned the term „reasonable“, where some politicians wanted to stipulate exact timeframes. For more on the discussion see https://sabor.hr/hr/prijedlog-zakona-o-izmjenama-i-dopunama-zakona-o-obveznim-odnosima-prvo-citanje-pze-br-148, https://www.sabor.hr/hr/konacni-prijedlog-zakona-o-izmjenama-i-dopunama-zakona-o-obveznim-odnosima-drugo-citanje-pze-br-148.
[56] The buyer is not entitled to terminate the contracts if the lack of conformity is not significant but he is entitled to other rights (Article 410(7) of the OA).
[57] Article 413 of the OA, see V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A. PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M. VUKELIĆ, B. VUKMIR, op. cit., p. 709-713.
[58] See also M. JOSIPOVIĆ, „Novo reguliranje ugovora o kupoprodaji“, Informator, num. 6707, available at:
https://informator.hr/strucni-clanci/novo-reguliranje-ugovora-o-kupoprodaji.
[59] It is possible that Article 288 of the OA will apply. It stipulates that “contracts in a prescribed form may be cancelled by agreement in any form, except where the law provides otherwise in a particular case or where the purpose for which the form is prescribed requires that the cancellation of the contract be effected in the same form”.
[60] Article 417 of the OA, see: V. GORENC; L. BELANIĆ, H. MOMČINOVIĆ, A. PERKUŠIĆ, A. PEŠUTIĆ, Z. SLAKOPER, M. VUKELIĆ, B. VUKMIR, op. cit., p. 717-719.
[61] In general, it is regulated in Article 419(1) of the OA that “termination of contract due to a lack of conformity shall have the same effect as the termination of bilateral contracts due to non-performance”.
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