CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ on the business-seller as to informing the consumer of the properties of the goods or services being sold. Much like the pre-contractual duties found in Articles 12 through 22 of CESL, under Section 9(1) of the CPA, business-sellers have a duty to “inform consumers about the properties of products to be sold , the nature of services to be provided, the manner of use and maintenance of particular products, any risks related to the improper use or maintenance thereof, and about any risks concerning services that are to be provided.” The phrase “of products [or services] to be sold” indicates that these are pre-contractual duties. Similar to CESL’s requirement that sellers provide information as to the consumer’s right to withdraw from the contract and to reject non conforming goods, 35 Section 13 of the CPA requires the seller to inform consumers about the extent, conditions, and manner of making liability claims concerning defects in products.” The right of the consumer to confirmation of the contract is represented by parallel provisions in CESL and the CPA. Article 18 of CESL places a duty on the seller to provide confirmation to the consumer of the nature of the contract and, in some instances, confirmation of the consumer’s consent. 36 Section 15(3) of the CPA requires, in cases where a service is not provided instantly, a seller must “issue a written confirmation of the accepted order to the consumer.” 37 A few important points to be noted include: (1) the Czech CPA covers all sales of goods or services to consumers, (2) CESL only covers the sale of goods and supply of digital content, as well as services related to those types of transactions, and (3) CESL if opted into by the contracting parties would supplant the provisions of the CPA, but only in the areas covered by CESL. As to the last point: “The argument in favour of a single EU sales law is that sales by Internet traders are hampered by the Rome I rule that consumer domestic protections apply and that those protections vary across the European Union with its multiplicity of jurisdictions and Member States.” 38 T he CPA would still govern B2C transactions related to services not directly related to the sale of goods or the supply of digital content. What is unclear is whether the CPA even covers the supply of digital content. A fair reading is that it does, but it is ambiguous whether the supply of digital content would be treated as a sale of goods or a supply of services under the CPA.

35 CESL, Article 17. 36 This would be the case where the consumer consents in advance to the purchase of digital content not supplied in a non-tangible medium. See CESL, Article 40(3)(d). 37 CPA, Section 16(1) also gives the consumer a right to demand that the seller provide “a receipt confirming purchase of a product or provision of a service,” along with a list of more detailed information. 38 Hector L. MacQueen, “Europeanisation of Contract Law and the Proposed Common European Sales Law,” in L. DiMatteo, Q. Zhou, S. Saintier, et al., eds., Commercial Contract Law: A Transatlantic Perspective (Cambridge University Press: New York, forthcoming).

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