Extending the Term for a Company’s Liability and Burden of Proof is not Reasonable
The Ministry of Justice is planning changes in order to transpose the directive on goods and directive on digital content into Estonian law. Transposition of the directive influences all companies that are selling goods, digital content to consumers or provide digital services. The Chamber gave the Ministry feedback on the choices of the transposition and does not support the extension of the term for the entrepreneur’s liability and burden of proof.
Entrepreneurs should not be liable for the non-conformity of goods that were revealed after two years
A survey conducted among the members of the Chamber of Commerce showed that the companies do not support establishing a longer term, because in the case of some products, two years is a too long period in order to establish the reasons for non-compliance. For example, in case of footwear it would be difficult to find out after a long time has passed if the deficiency occurred on the product already at the moment of transferring the goods or it arose from the use of the items. A similar situation would be created for digital goods (e.g. games).
Term for the entrepreneur’s burden of proof should not be extended
If a deficiency on a product is discovered within the first six months from the transfer of the goods, the company is required to prove the reasons for the deficiency, after that the obligation to prove the deficiencies lies on the consumer. The Chamber does not support extending the term for the entrepreneur’s burden of proof, because after a longer period of time, chances are higher that deficiencies occur due to wear and tear and it would not be reasonable to request from a company to make expenses in order to find out the reasons for deficiencies that have occurred after such a long time.
Liability for the used goods could be agreed separately
Members of the Chamber find that a special rule should be established for used goods. This would allow the parties to agree separately that the entrepreneur is not responsible for the deficiencies of the used goods that occurred, for example, after a year from the transfer of the goods. The two-year term of liability may set the consumer’s expectations on the quality of the goods to high, because the goods may previously have been used for a very long time.
Obligation to notify the consumer should be kept
According to the applicable procedure, a consumer, in order to exercise their rights, must inform the seller of the non-compliance of the goods within two months from the day when they discovered the non-compliance. The Chamber finds that in the case of selling movables, the respective obligation should remain in force.
Bottlenecks in a situation where, in order to obtain digital content or services, the consumer gives their consent to process data instead of paying a fee
In the opinion sent to the Ministry, we highlighted the problems that may arise from the agreements in which the consumer provides their personal data instead of paying a fee in order to obtain digital content or services. Namely, if we consider such agreement as a mutual agreement, there may occur situations where the provider of content or service cannot check correctness of the data and thus compliance of the performance of obligations to the terms and conditions of the agreement.
Furthermore, a consumer is entitled to withdraw their consent for data processing at any time. This raises a question, what can a company do to protect themselves after a consent has been withdrawn. A possible solution could be establishing a period during which the consumer’s consent is valid. If the consumer withdraws the consent before that time, availability of content or service is cancelled. However, we emphasised that the subject needs additional thorough analysis.