The following judgment of the European Court of Justice deals with two
main questions. The first question is whether the seller who is not in fault is
obliged to compensate the loss of the consumer which exceeds the subjective
equivalence between the obligations of the parties arising from the contract. The
second question is whether the seller is able to refuse to replace goods not in
conformity on the ground that replacement would impose unreasonable costs on
him. The court answers the first question in the affirmative on the following
grounds: The demanded remedy had to be completed without any burden on the
consumer and any significant inconvenience to the consumer; even assuming
that the non-conformity of goods did not result from the fault of the seller, the
fact remained that by delivering goods not in conformity the seller failed
correctly to perform the obligation; the seller’s financial interests were
sufficiently protected by the Directive. Regarding the second question, the court
denies such a possibility for the seller where the repair is not possible. However,
the court also allows to imply costs on the consumer, while enabling reducement
in the reimbursement, which seems to be contradictory since the court requests
that a remedy had to be completed without any burden on the consumer. In
conclusion, however, the ruling seems fair.
Consumer protection sale of consumer goods and associated guarantees Directive 1999/44/EC – Article 3 (2) and (3) replacement of defective goods as the only remedy defective goods already installed by the consumer obligation on the seller to remove the defective goods and install the replacement goods absolute lack of proportionality consequences
Tüketicinin korunması tüketim malları satımı ve bunlara ilişkin garantiler 1999/44 sayılı Yönerge’nin 3. maddesinin 2. ve 3. fıkraları tek tebdir türü olarak ayıplı malların değiştirilmesi/ikame edilmesi tüketici tarafından hazırdakurulumu yapılmış ayıplı mal satıcının ayıplı malı kaldırması ve ikame malı kurması borcu mutlak ölçüsüzlük sonuçlar
Primary Language | Turkish |
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Journal Section | Articles |
Authors | |
Publication Date | December 21, 2018 |
Submission Date | April 11, 2018 |
Published in Issue | Year 2018 Volume: 20 Issue: 2 |
Dokuz Eylül University Law Review
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