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Consumer sales and guarantees in europe


par David Guitton
University of Exeter - LLM in International Business Law 2010
Dans la categorie: Droit et Sciences Politiques > Droit des Affaires
   
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YEAR 2010

 

DISSERTATI0N

Consumer Sales and Guarantees in Europe

GUITT0N DAVID

University of Exeter - School of Law - LLM in International Business Law Supervised by Professor A. Garde

ABSTRACT

In sales contracts, consumers are protected on a multilevel basis. Indeed, European rules, in particular the Directive of 1999 on certain aspect of the sale of consumer goods and associated guarantee, stand alongside the provisions of Member States themselves.

At the national level, the form and the content of consumer protection vary greatly. In France, the system of latent defect and «garantie des vices caches» appears to be complicated and is not designed for consumers' use. Conversely, in the UK, consumers are granted with a right to reject faulty goods on which they can efficiently rely. As a matter of fact, these differences have not been lessened by the Directive of 1999 which provides for minimal harmonisation.

The Commission observes that this practice of minimal harmonisation has led to the fragmentation of the regulatory framework in Europe. This is contrary to its goals to strengthen the internal market by increasing cross-border transactions and reinforcing consumer confidence. This is why it has launched on 2008 a Proposal on consumer rights providing for a full harmonisation Directive. However, both this method and the Proposal's content itself appear to lead to a great decrease in consumer protection. In addition, the Proposal fails in achieving the other objectives it has been assigned.

TABLE OF CONTENTS

INTRODUCTION

I. THE CURRENT REGIME IN FRANCE AND IN THE UK

A. The Directive of 1999 on certain aspect of the sale of goods and associated guarantees

B. The current regime in France - A fragmented Regulatory framework

C. The current regime in the UK - A unified and efficient regime

II. THE PROPOSAL FOR A DIRECTIVE ON CONSUMER RIGHTS

A. The proposal's objectives and the ways to achieve them

B. The Proposal's ability to reach its objectives

C. Alternative solutions

CONCLUSION

CONSUMER SALES AND GUARANTEES IN

EUROPE

Introduction

«The beauty of the Single Market is that by removing barriers we should not have to choose between business and consumer interests »1. Made the 15 March 2010 by V. Reding during a speech in Madrid, this statement replaces consumer protection in the context of the internal market. Indeed, from the European Union's perspective, the balance to be stricken between consumer protection and business interests is assessed through its ability to strengthen the internal market. More importantly, the belief that this particular method eludes the traditional scheme opposing consumer protection one the one hand and economic interests on the other is at the core of the European Community's reasoning. This statement also shows that economic issues lay at the basis of the European Union's action on the field of consumer. This explains the content and the form of the European regulation as regard consumers.

Before going any further, the reasons why consumers are ought to be protected
should be recalled. When contracting with professional, consumers are deemed to be
in a weaker position than the other party. This is mostly due to their lack of

information and to the fact that in modern transactions, most contracts are contracts of adhesion which cannot be negotiated. Thus, rules generally aim at providing more information to consumers, at offering them a right of withdrawal from the contract or at giving them particular and more generous grounds on which they can base their claim.

This being in mind, it shall be precised that consumer contracts are amongst the most common contracts which take place on a daily basis. In other words, more than concerning everyone, consumer contracts are at the basis of consumers' consumption, which is to say one of the driving forces of our modern economy . As such, providing that a law efficiently protecting consumers can strengthen their confidence and thus induce them to consume, we understand why the European Union sees consumer law as a matter of economic significance. As such, sales contracts are one of the areas where consumer protection is of great significance.

In Europe, consumer sales are regulated both at the European level, in particular through the Directive of 1999 on certain aspect of the sale of consumer goods and associated guarantee2, and at the national one by each Member States. However, this fragmented regulatory framework is criticised by the Commission as preventing business from providing goods and services in other Member States and as undermining consumers' market 3

confidence in the internal . This is why the

Commission published a Green Paper on the Review of the Consumer Acquis on
2006 which was followed on October 2008 by a Proposal for a Directive of the

4

European Parliament and the Coun cil on Consumer Rights (the Proposal) . The
Proposal's most striking feature is the fact that it provides for a full harmonisation

Directive. As such, if it was adopted, Member States would not be allowed to maintain or introduce in their own legal system any law which would provide for a different level of protection, even more generous, as the one laid down in the Proposal.

The Proposal has been the object of many articles and attracted many critiques. This great interest can be explained by the fact that it provides for a system whereby Member States would lose a part of their sovereignty over the regulation of consumers. Even more, as it stands know, the Proposal threaten some existing rules already provided for by Member States such as the French syst em of latent defect and the UK's right of rejection. As consumer contract law goes at the heart of many legal systems, these consequences are regarded with circumspection and all details of the Proposal's content are closely analysed5.

6

Even though the Pr oposal gathers existing Directives

four regulating a wide area of

consumers' contracts, the scope of this work is narrower as it only concerns sales contracts and, more precisely, consumers' rights when confronted to a faulty or nonconforming good. As this work will only concern consumers' legal protection, commercial guarantees are excluded from its scope. In addition, we will only focus on the French and the UK's legal framework as well as on the Proposal currently debated.

It will be seen that generally speaking, where the law generally misses its point is by
not acknowledging the fact that in practice, consumers are generally reluctant to
defend their rights in front of a judge. Indeed, to put it concretely, a consumer

confronted to a problem with the 40 euros coffee-maker he purchased will most

7

certainly not be willing to go to courtas the time and the costs involved in such process do not worth the trouble of so doing8. Moreover, consumers are generally speaking largely unaware of their rights and, when some of them are known, they are often misunderstood9. Thus, it is here submitted that a good law protecting consumers should be clear enough to be understandable by lay people and should in the same time be usable by them without any judge's help. That would put them on an equal footing when contracting with professionals.

Accordingly, keeping in mind these practical concerns, the main question underlying this whole work is the following one: how good are the current and upcoming provisions protecting consumers in sales contracts?

As a matter of fact, the English approach of consumer protection is more practical

10

and more in line with the considerations

above . Indeed, analyses of the concrete

obstacles standing on the way of consumers confronted to faulty goods have been undertaken11 and it will be demonstrated that the English legal system appears to be more adapted to consumers. Conversely, the French system provides for highly technical rules which set a theoretically fair balance between buyers and sellers. It will be showed, however, that these provisions appear to be, to say the least, unwieldy for consumers [I]. Finally, the Proposal is also concerned with some of the weaknesses affecting national laws. However, its main shortcoming concerns the effects it has on these rules and the level of protection already granted to consumers by Member States [II].

I. The current regime in France and in the UK

As buyers are most of the time the weaker party when purchasing goods, Member States have long recognised that they are ought to be adequately protected against the stronger bargaining power of the professional seller they are contracting with. As such, all Member States have rules regulating buyer sales and guarantees, and sometimes rules regulating more precisely consumer sales and guarantees. However, as these rules were sometimes deemed to be too low in certain countries and to impede the development of the internal market, the EU decided to provide for a minimum set of protection that all Member States would have to reach, providing that they were however allowed to go further in the protection granted to consumers if they wished to12. Thus, following the Green Paper on Guarantees for Consumer Goods and After-Sales Services published by the Commission in 199313, the Directive on certain aspect of the sale of consumer goods and associate guarantees (the Directive) was launched in 199914, all Member States being in charge of transposing it.

Amongst Member States, such transposition led to different difficulties, controversies and solutions depending on national traditions, cultures and legal systems. Consequently, measures of transposition varied greatly between Member States. Some chose the «great solution» («la grande solution15»), a full reform leading to a monist regime as regard the regulation of all sales contracts, as Germany for instance16. Conversely, some chose the «small solution» («la solution de transposition minimaliste17») leading to a dual regime, as France and the UK for instance. Indeed,

both in France and in the UK, the Directive was transposed by adding specific rules applicable to consumers in addition to those already existing for all buyers and which remained mostly unaffected.

Such way of transposing, though allowed and having the advantage to protect national legal systems, implies a pilling up of legislations which is questionable in terms of clarity and intelligibility. Indeed, in France for instance, consumers have the choice between the regulation coming from the Directive and the general law of contract. Such piling up of regulations leads to complexity, incoherence as regard notions which definition differs depending on the law and confusion as regard applicable regimes18. In addition, overlaps between national and European regulations, called «double-banking» 19, are to be avoided for the sake of easy-understanding and easy -access to law which are primordial issues in the field of consumer protection.

This part is aimed at giving an overview of the rules currently regulating consumers throughout France and the UK. More precisely, national rules and European rules (the Directive) will be differentiated. As regard national rules, it will be demonstrated that both legal systems have different views on the ways consumers are best protected. Indeed, whereas civil law countries' rules are drafted to ensure that parties perform their obligation as agreed, common law countries focus instead on the termination of the contract if it is not been honoured as specified20 . Both in its content and method, the efficiency of the UK's method as regard the French one will be demonstrated.

As regard the Directive, it is important to note straight away that a Proposal for a reform of the rules regulating consumers, including consumer sales and guarantees, has been launched in 2008 21 . The content of the Proposal is not strictly speaking so different from the content of the 1999 Directive which content will be further analyzed from a more critical perspective (II. The Proposal for a Directive on consumer rights ). As a result, we will only give an overview of the rules laid down in the Directive (A) before detailing the national rules applicable both in France (B) and in the UK (C).

A. The Directive of 1999 on certain aspect of the sale of consumer goods and associated guarantees

22

After 15 years of discussions and debates , the Directive of 1999 was finally adopted with the objective to provide for a high degree of consumer protection in Europe and to promote the internal market, as stated right at the beginning of the text23. To fulfill its objective, the Directive draws upon different sources, most importantly the United Nations Convention on Contracts for the International Sale of Goods24 and, subsidiary, the British legal system and some principles of civil law 25 .

26

The Directive only provides for harmonisation

minimum . Minimum harmonisation

means that Member States must follow the Directive's provisions as a minimum set of protection for consumers but are allowed to maintain or to create rules which provide for a better protection27. As a consequence, there are divergences between the provisions stated in the Directive and the rules implemented by Member States

when transposing it. Thus, as the Directive has not been transposed exactly as it

28

stands by Membe r States which all provided for some modifications , this part only aims at describing the main features of the Directive's rules. A more critical assessment of the rules it lays down will be carried out when detailing the measures of transposition in France and in the UK.

The Directive does not regulate all aspects of consumer sales and guarantees. As an
example, no rules about damages are provided for by the Directive and this matter is

29

thus to be ruled by Member States national laws . As a matter of fact, the two most important parts of the Directive are the provisions concerning the non-conformity (1) and the remedies available for consumers (2).

1. Non-conformity

The Directive provides that all goods have to be in conformity with the contract of sale30. More precisely, the Directive provides that goods are deemed to be conforming if they comply with four criterions listed in article 2(2) of the Directive. These criterions are cumulative and consumers only have to prove that one of them is not fulfilled to prove non-conformity. Thus, goods must 31:

· Comply with the descriptions given by the seller and, if applicable, comply with the sample or model presented;

· Correspond to the normal use usually made for this kind of goods;

· Correspond to the particular use the consumer intends to make with the goods as long as such particular use was known by the seller; and


· Be of normal quality and perform as expected for this kind of goods, taking into account their nature and any public statements about them made by the seller or the producer, in particular in advertising and labeling.

Here, it must be noted that the Directive's notion of non-conformity does not encompass the situation where the good is delivered in wrong quantity. In such cases, the remedies applicable would be those of the Member States themselves32.

In certain cases, the good does not have to comply with the public statement referred to in the last condition if the seller can prove that33:

· He was not aware and could not reasonably be aware of the public statement;

· The statement had been corrected prior to the sell; and

· The consumer's decision could not have been influenced by the statement.

In addition, if the consumer «was aware, or could not reasonably be unaware» of the lack of conformity or if such lack of conformity is due to the materials provided by the consumer, then the good is not deemed to be non-conforming34.

Moreover, it must be proved that non-conformity existed prior to the sale of the good35. However, such proof can be very difficult to provide, especially when dealing with complex goods such as laptops or cars. Thus, except if they resort to an expert, either consumers or sellers will have trouble to prove that a particular breakdown is due to a misuse from the consumer or from a defect which already existed before the sale. Therefore, albeit balancing consumers and sellers' interests is a matter of the

finest alchemy, as regard the issue of proof it can be said that the Directive successfully takes over this challenge. Indeed, during the first sixth months following the delivery of the goods all problems affecting them are deemed to result from a defect which already existed moment of the purchase 36

the

at . Even though the seller

can still prove the contrary, in particular if such presumption is not compatible with the nature of the good (a lettuce for instance) or the lack of conformity (the good's defect obviously flows from a misuse by the consumer)37, this provision will most of the time allows the consumer to claim for a remedy without any contest. Conversely, after the first sixth months, the consumer has the burden to prove that the good was non-conforming prior to its purchase.

In addition, it is important to note that sellers are liable for the non-conformity of the goods they two the delivery 38

sell only during a period of after

years ir . Moreover, the

Directive provides that consumers must inform the sellers of any lack of conformity

39

within a period of two months following the revealing of such lack of conformity . As it will be highlighted later, these limitations are rather harsh and have, in fact, seldom been transposed by Member States.

As soon as non-conformity is established, consumers are entitled to remedies.

2. Remedies

The Directive not contain any provision regard damages 40

does as . For other

remedies, the Directive offers consumers select 41

four choices they can . What is

rather new compared to the Member States' existing legal framework is the hierarchy

42

provided by the directive . This distinctive feature show that the Directive is before
all aimed at ensuring the performance of the contract by giving to sellers, in case of

43

failure, the opportunity to solve the problem and make the goods conforming . More precisely, remedies are organised in two tiers, repair or replacement first (a) and rescission or reduction of price then (b).

a. Repair and replacement

In case of non-conforming goods, consumers have first the choice between repair and replacement44. However, albeit this choice has to be done by consumers, sellers have the final word since they can refuse the remedy chosen on the ground that it is impossible or disproportionate and can then carry out the other remedy (replacement or repair, as the case may be) 45.

A remedy is deemed to be disproportionate if it entails u nreasonable costs on the seller46. To assess such unreasonable costs, article 3(3) of the Directive specifies that the value of the good (if it was conforming), the importance of the lack of conformity and the existence of alternative remedies which do not cause significant inconvenience to consumers are taken into account. As an example, a seller can refuse to replace a car with a slight defect (defective lights for instance) which can be easily fixed without any inconvenience and can choose instead to repa ir it. In this example, replacing a car because its lights are merely broken is obviously disproportionate. However, it is important to keep in mind that most of the time, regardless of the defect affecting the good, the seller will prefer to repair it rather than replace it, mostly for financial reasons. It is thus important that consumers have the

choice at first and that this choice can only be amended in case of impossibility or disproportion, which have to be demonstrated.

Once the remedy has been cho sen, the seller must carry it out free of charge, this
being seen quite broadly since it involves the cost related to postage, labour and
materials47. In addition, the seller must carry out the remedy within a reasonable time

48

and without any great inconveni ence for the consumer . The reasonable time and
great inconvenience must be assessed as regard the nature of the good and the

49

purpose for which the consumer required the good . As an example, whereas a car's light can be expected to be repaired in a couple of days, it usually takes longer to repair a laptop as it often has to be sent to a special repair shop.

If the consumer is not entitled to repair or replacement, presumably when these

50

remedies are impossible or disproportionate , or if the remedy chosen has not been achieved within a reasonable period of time or without great inconvenience, the consumer can claim for a price reduction or a rescission of the contract51.

b. Rescission and reduction of price

First of all, it is worth noting that the Directiv e is rather lapidary on these remedies. As an example, the Directive only provides that rescission is not available if the lack of conformity is minor52 but does not give any definition of rescission or any guidance as to the consequences of such remedy and the ways to carry it out. This is rather surprising as such remedy leads to the termination of the contract and as, in practice, a lot of disputes arise on the consequences attached to it53. This lack of precision

shows the importance given by the Directive to the performance of the contract rather than its termination.

Conversely, in case of reduction of price, the consumer keeps the good but is entitled to Òan appropriate reduction of the priceÓ54. It seems to be fair to consider that this sum of money should be the difference between what has actually been paid and what would have been paid by the consumer for the defective good55. However, here again, no precisions is provided by the Directive.

B. The current regime in France - A fragmented regulatory
framework

Contrary to the UK56, in France, many debates arose as regard the best way to transpose the Directive of 1999. Indeed, some authors claimed that the Directive should be transposed as part of a broad reform of the Civil Code modifying and simplifying the general lawof sale 57 . However, most authors supported another view and argued that a transposition a minima providing for a new regime would be the most adequate solution. They declared that as such, the new law created would naturally fit in the Consumer Code (Code de la consommation) and were opposed to any amendment to the Civil Code58. Indeed, as a matter of fact, in France, the Civil Code is seen as a national pride and few authors actually dare to suggest its amendment. All these disputes led to a delay in the transposition of the Directive which was condemned by the European Court of Justice (ECJ) the 1 July 200459. On

200460, it was finally decided to transpose the Directive in the Consumer Code and,
accordingly, this process led to the adoptio n of Ordinance of 17 2005 61

the February

which offers to consumers a new set of rules on which they can base their claim62.

What was at the core of the arguments dividing the doctrine was the relevance of the dual regime existing between latent defect (garantie des vices cachés) and what is called in France «obligation de déliverance conforme» or «garantie de conformité» (conforming delivery). Pursuant to article 1603 of the Civil Code 63 , both obligations have to be complied with by all sellers but remain by nature different. Put it simply, latent defect refers to the quality of the good purchased (a defective car which engine does not work for instance) whereas the «garantie de conformité» refers to the good's compliance with the contract's specifications (a yellow car instead of the red car described in the contract for example). This distinction was the stumbling-block dividing authors as some of them believed it unnecessary, complicated and irrelevant64.

As a matter of fact, with the legal regime coming from the Directive of 1999 which adds a new lay to the existing and confusing dual system set in the Civil Code, overlaps and difficulties as regard the handling of such rules are unavoidable. In addition, other provisions which concern the general law of contracts, such as misrepresentation or the error about a substantial quality of the good for instance, can also be used by buyers willing to escape from a contract which provided them with a non-conforming good65. Thus, it can be said that the French law of sale applicable to consumers has become dreadfully complicated. That is why there are calling for a reform simplifying the law of sale in general66.

As latent defects and the «garantie de conformité» are applicable to all buyers, from lay people to transnat ional companies, the rules are not especially designed for consumers and are unwieldy to use as regard daily transactions concerning low or medium-value goods. Moreover, the complexity pertaining to both regimes is highly questionable since it is confusing for consumers. Conversely, as we will see in next part (C. The current regime in the UK - A unified and efficient regime), the system currently prevailing in the UK is much simpler and the regime easier for consumers' use. As a consequence, for the sake of consumers' understandability, one could think of a single regime especially shaped for consumers which would draw upon the European notion of non-conformity but would in any case provide for a better protection. Such system would make it much easier for consumers to defend their rights in front of sellers.

In the scope of this part, we will first analyse the dual regime laid down in the Civil Code which provide s two grounds on which buyers can base their claim depending on the nature of the problem affecting the product: non-conformity to the contract (1) or latent defect (2). Then, we will have a look at the rules transposing the Directive of 1999 and creating a new and unique regime of non-conformity (3).

1. The «obligation de deliverance conforme»

The «obligation de délivrance conforme» is laid down in the Civil Code from article 1604 to article 1624. As a matter of fact, the regime has been mostly shaped by judges themselves and is contractual by nature67. If the notion of «obligation de

délivrance conformeÓ is in theory very clear (a), its distinction from latent defect can in practice be very difficult to draw (b) and its regime is not designed for consumersÕ use (c).

a. Notion of Òobligation de délivrance conformeÓ
The Òobligation de délivrance conformeÓ is an obligation lying on sellers who have to

68

make sure the good delivered to buyer s conforms with all contractual specifications . Proving this absence of conformity is easy. Indeed, as it is an obligation of result (an obligation to c ertain result) 69

achieve a , it is enough to show that there is a difference

between the good's description in the contract and the good actually put in possession of the buyer70. As an example, a watch which is described as being able to go under water will be non-conforming if it breaks as soon as it is in contact with water. Even a slight difference is regarded as a breach of the «obligation de délivrance conformeÓ, as expresse d in two cases delivered the same day by the Cour de cassation. In the first one, the carÕs colour was slightly different from what was depicted and in the second one, the home furnishing's ironworks were not exactly as described and, aesthetically, the buyer was not satisfied71. In both cases, the goods were considered as being non-conforming.

Furthermore, it is important to note that as the Òobligation de délivrance conformeÓ is part of the contract's execution, it encompasses situations where the seller does not provide the goods, provides the wrong quantity of goods or provides them with a delay.

b. Distinction with latent defect

At first sight, the «garantie de conformité» and latent defects are easily distinguishable from each other. As an example, a table which is in plastic instead of wood would be regarded as non-conforming. Conversely, if the table is, as agreed, in wood but is full of woodworms, then it contains a latent defect. However, such clarity can be blown on both a theoretical and a practical ground. First, it can be said that a good which is flawed is a non-conforming good since a buyer would obviously not agree to purchase a faulty item. In other words, as it is self-evident that the good on which buyers and sellers agree must be free of flaw, if there is in fact a defect, then the item could be simply regarded as non-conforming. This reasoning is the one prevailing in the UK where the law provides that there are implied terms in the contract which prevent buyers from delivering goods which contain a defect. Moreover, on a practical ground, the distinction made in the Civil Code can lead to absurd results. Indeed, coming back to our table eaten away by woodworms, if the buyer especially mentioned in the contract his willingness to buy furniture which does not contain any woodworms, then the very same table with the very same defect would be regarded as non -conforming rather than containing a latent defect.

As a result, some authors and lawyers have been willing to merge both concepts.

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This so -called monist doctrinewas not only based on intellectual arguments since the regime attached to latent defect and the «obligation de délivrance conforme» was used to be different, in particular as regard the period during which a complain could be lodged. Indeed, whereas a buyer confronted to a non-conforming good could act during ten years73, a buyer discovering a latent defect only had a brief period («bref

délaiÓ) to lodge a claim. Thus, whenever buyers were late to take action, lawyers would allege that the good containing a latent defect was per se a non-conforming good. As a consequence, they based their claim on a breach of the «obligation de délivrance conformeÓ instead of latent defect and thus asserted that they were still on time74. For a while, some judges of the Cour de cassation were convinced and enlarged the notion of Òobligation de délivrance conformeÓ in order to encompass the notion of latent defect75 whereas some other resisted and stick to the traditional distinction76. The definition of the «obligation de délivrance conformeÓ was then not merely non-conformity to the contract but also non -conformity to the utilisation of the good, which permitted to include latent defects. However, even though some authors are still defending this view, this monist conception is now abandoned77.

c. Regime of the «obligation de délivrance conformeÓ

The provisions related to the period during which a claim can be lodged are rather buyer-friendly (i). However, the regime of the Òobligation de délivrance conformeÓ as a whole is not designed for consumers which are likely to face difficulties when using it. Indeed, albeit the provisions concerning the proof itself are rather clear and easy to comply with, the importance given to the reception of the good does not really fit with consumers' interests (ii). Likewise, in practice, the remedies available are hard to carry out as regard consumers' position (iii).

i. The period during which a claim can be lodged

We shall first recall that the «obligation de délivrance conformeÓ is contractual by nature78. To put it concretely, when a seller delivers a non-conforming good, he is in breach of contract. Thus, it is the statute of limitations as regard contract law which is applicable. This statute deeply in 2008 79

has been modified . Before the reform, the

period to lodge a claim for non-conformity was of 30 years and was beginning at the

81

delivery of the good 80. Since the reform, the period is of five years and begins when the buyers knew or should have known the fact permitting them to exercise an action82. More precisely, the period begins at the delivery of the good if the nonconformity is immediately detectable or at the discovery of the non -conformity if it is hidden83.

This provision seems to be reasonable as 5 years is a period long enough to lodge a claim. Moreover, the fact that this period is flexible, which is to say that it does not begin at the same moment depending on whether the defect is apparent or not, is an interesting way to strike the balance between buyers and sellers with more accuracy. As a matter of fact, if the defect is apparent, it is only fair that the period of time begins at the delivery of the good. Conversely, when the non-conformity is non-apparent, it is normal that the period of time begins only at the moment of the discovery of the non-conformity. Thus, as such, these provisions protect efficiently consumers who will always have a reasonable time to lodge a claim.

Finally, in any case, the period during which a buyer is entitled to lodge a claim for
non-conformity is limited by article 2232 of the Civil Code84. Indeed, buyers have a

maximum of twenty years to complain from the moment they purchased the good regardless of the moment they detected the defect.

ii. The issues pertaining to the proof

The notion of «obligation de délivrance conforme» includes both non-performance (when the seller does not provide any good at all) and non-conforming performance (when the seller provides a non-conforming good). As a result, the provisions concerning the burden of proof are dual: sellers have to prove that they have

86

delivered the g ood to buyers 85 during the agreed period of deliverywhereas buyers have to prove that the good they have received does not conform to the contractual specifications87.

Thus, proving the non-conformity or the delivery is not very burdensome either for consumers or for sellers. Indeed, the former only have to show the differences existing between the good delivered and the contractual specifications whereas the latter can easily prove the delivery by ensuring that all buyers sign a receipt at the reception of the good.

However, as regard consumer protection, things get tricky when the goods purchased are not delivered immediately but later. In this case, the buyers see the goods for the first time after the conclusion of the contract and what is called a reception of the goods takes place. In practice, professionals often ask buyers to sign a receipt stating that the good if free of apparent defect, sometimes even before the buyer has the time to proceed to any verification88. But even in the absence of such

receipt, buyers have nonetheless a duty to examine the goods at their reception and

89

have to verify their conformity to the contract . Then, if they find a defect or a detail from which they can infer that the good might be non -conforming, they must either express reservations of directly refuse the good. As an example, the delivery of a green car instead of a white one is obviously an apparent non-conformity which must be noted by the buyer. The reservations or refusal have to be given at the reception of the good or briefly after it90. If the buyers accept the good without any reservations, they will not be able, later on, to complain for any apparent non-conformity they should have noticed91. Such point has been argued at length in cases law but the judges' position always remained still92 . However, if the non-conformity is hidden and cannot be discovered at the reception, the buyers will still be entitled to lodge a claim for non-conformity later even though they did not express any reservation at the reception93.

Such consequences given to the reception of the good are rather ruthless, especially for consumers who might not know these rules. Such provisions are understandable in the field of business where there is a need for rapidity and legal certainty bu t do not seem very useful as regard consumer sales. Moreover, even though judges have a tendency to be more lenient with consumers94, in practice, some of them are likely to be unmindful when verifying the good delivered. In addition, consumers might not dare to protest right away when they detect a non-conformity and may then exceed the length of time (not detailed but short) allowed to complain. Thus, I think that these provisions should be removed when the buyers are consumers since their mere inattention and their ignorance of the applicable rules should not lead to the lost of all remedies.

It can be argued that, in the field of consumer sales, the rules pertaining to reception are not often applicable. Indeed, they only concern goods delivered to buyers and not those purchased and taken directly at the store, which is in practice the most common modality. However, it should be recalled that goods delivered are often expensive and are of those for which consumers might be willing to take action in case of non-conformity. Thus, the provisions regarding the reception of goods are of great relevance in the protection of consumers.

iii. Remedies available for non-conforming goods

It is worth recalling that the «obligation de délivranceÓ conforme is contractual95. As such, the remedies available are those applicable for contract law in general. However, as diverse and powerful as these remedies are, they remain difficult to handle for consumers. Indeed, admittedly, what is first striking when looking at the French remedies English variety 96

as compared to those providing for in law is their .

However, in practice, most of the remedies available for lack of conformity can only
be commanded by a judge while consumers are generally reluctant to spend time

97

and money going to court unless the good purchased is really expensive . As a matter of fact, in practice, most difficulties encountered by consumers concern goods for which they think it does not worth the trouble to go to court98.

Moreover, except for damages, prior to any claim for remedies, buyers must first give
a formal notice to sellers pointing out the non-conformity of the good or the non-
performance of the contract99 . Such formal notice is aimed at warning sellers that

they have to perform the contract as agreed and gives them another chance to do so. However, some a priori of formal notice 100

situations exclude the given any . Indeed, if a cake is purchased for a wedding and is not delivered (non-performance) or if a wrong cake is delivered (non-conformity), then, after the wedding, there is nothing the seller can do to perform again the contract since no cake is needed anymore and the wedding is already ruined. Thus, the buyer can ask directly for a remedy. But except in these kinds of situation , the necessity to give a formal notice is rather heavy and works as a disincentive for buyers, especially consumers, confronted to nonconforming goods and willing to obtain remedies.

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Buyers who have the choice amongst all remedies made available to them . This is important as they can select the one which best fit to their situation and which is the most adequate to solve their problem.

Generally speaking, the remedies available for buyers are aimed at ensuring the proper performance of the contract by the sellers (á), those leading to its termination being seen as last resort remedies (â)102. In any case, damages are available regardless of the remedy chosen (ã)103.

á. Remedies encouraging the right performance of the contract

Remedies which do not lead to the destruction of the contract and induce its performance are the withholding of performance, specific performance, replacement and price reduction.

The withholding of performance («exception d'inexécution»)

Intellectually speaking, it is considered that the sell er must first perform the contract

104

before any payment is due by the buyer . Thus, albeit the Civil Code does not explicitly provides for it, if the seller does not deliver the good or if he delivers a nonconforming good, the buyer is allowed to retain payment until the contract is performed as agreed 105 . Moreover, the withholding of performance needs not be ordered by a judge so buyers can use it as they want, the only condition being that the non-performance or the non-conforming performance of the sellers must be serious. Thus, such remedy seems at first sight to be rather strong and to be an efficient incentive encouraging the sellers' performance.

However, in contracts concluded between consumers and professionals, the consumer is often required to pay prior to the delivery of the good. Thus, in practice, the withholding of performance is not used by consumers.

Specific performance («exécution en nature») and constraint («astreinte»)

Specific performance is a remedy laid down in article 1610 of the Civil Code which obligate which contract 106

s the seller to deliver a

good conforms to the or, if it is not

possible, an equivalent good107. Specific performance is thus a very powerful remedy

108

since it can lead to the replacement of the good or its reparation . In addition, when commanding specific performance, the judge can even force the seller to perform under constraint109. This means that the seller will have to pay a sum of money per day, week or month until compliance with the judge's instruction is fully met 110 .

However, constraint is in practice rarely ordered in consumers' sales as it is limited to the business field . Moreover, specific performance is a judiciary remedy and, as already highlighted, consumers usually do not take the trouble to go at court to defend their rights unless the good is of great value.

Replacement

Replacement is a remedy rather unknown and its name is in fact quite misleading.

111

Indeed, it is not the good which is replaced but the other party . To put it concretely, a buyer confronted to the non-performance of the contract by the seller (seller 1) can ask another seller (seller 2) to provide him with the good112. What is very interesting is that the buyer does not have to pay seller 2 since it is seller 1 who has to make such payment. However, providing that only a judge can allow for replacement, here again, this remedy does not fit for consumers and is in practice only used between professionals.

Price reduction («réfaction» or action quanti minoris)

This remedy is not provided for in the Civil Code but has been made available, after many hesitations 113 , by judges 114 . Thus, in practice, its regime is rather unclear depending on whether the good is non-conforming or whether the sel ler has merely not performed his obligation115. At first sights, it seems that this remedy is more in line with consumers' interests and the Directive of 1999 also provides for it. However,

conversely to the Directive's system, price reduction has to be commanded by a judge, which is, again, problematic as regard consumers.

â. Remedy leading to the termination of the contract: resolution

Buyers confronted to a non-conforming good are entitled to claim for resolution of the contract116. Resolution leads to the termination of the contract with retroactive effects. More precisely, parties are deemed to be in the situation they would have been if they had never contracted. Thus, the buyer has to give back the good purchased and the seller the price paid for it by the buyer. The regime of resolution is rather buyer-friendly since they do not have to return the good but only have to make it available to the seller. Moreover, sellers cannot ask for an indemnity on the ground that the buyer used the good117 or for the wear and tear caused by the utilisation of the good118.

As regard these consequences, such remedy is very powerful for buyers and works as an incentive for sellers who do not want to lose all benefits arising from the contract. However, it has to be noted that unless specifically allowed in the contract, which is in practice unusual in consumer sales, resolution has to be decided by a judge. Moreover, to be allowed by judges, the non-conformity or the nonperformance to the contract must not be trivial and must reach a certain level of

gravity 119120

. Even though the level of gravit y required is not very high , such remedy is uneasy to carry out for consumers. As a comparison, the resolution provided for in article L. 114-1 of the Consumer Code (created by the transposition of the Directive of 1999) is automatic and consumers need not see a judge121. Likewise, the English

system provides consumers with a right to terminate the contract which can be used without any judge's help. Thus, here again, the French remedy seems at first glance to be interesting but, when closely analysed, appears to be unwieldy for consumers.

ã. Damages
In the French legal system, the integral compensation for any prejudice suffered is

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set up as a principle . Thus, damages cover a wide area and can repair virtually all losses endured by the consumers123 including those related to the delay until the right performance of the contract is done124, the reparation carried out by a third-party to render the good conforming125, the difference in terms of value between the good delivered and the conforming good expected126 or even moral damages.

To obtain damages, buyers must prove that the prejudice they suffered is certain,

128

foreseeable 127 and that it has been caused by the lack of conformity . These conditions are usually easy to fulfill and a consumer who suffered a prejudice will not, in practice, have any difficulty to obtain a full compensation for the prejudice he suffered as a consequence of this non-conformity. Here again, damages have to be granted by a judge. However, this is a normal modality as such remedy could not work without a judge.

2. Latent defect

The regime of latent defect, also called hidden defect, originated in Roman law where
it was especially created to regulate the sale of slaves and animals since these kinds

of sellers swindlers 129

were as

seen . Until the XXth century, it had a limited role and

was rather unused. However, with the development of consumption and the increasing in goods' complexity which makes it harder for a buyer to detect a problem affecting a good, latent defect experienced a growing use.

Latent defect has been laid down in the Civil Code since the beginning and can be found from article 1641130 to article 1649. As such, the regime of latent defect is available for all buyers. However, it is worth noting that prior to the ordinance of 2005 which transposed the Directive of 1999, article L. 211 -1131 of the Consumer Code provided specifically that the regime of latent defect was applicable for consumers and reproduced verbatim the corresponding articles of the Civil Code.

The notion of latent defect is seen as complementary to the «obligation de délivrance conforme». Indeed, as the latter makes sure that the buyers is provided with conforming goods, the former ensures that the buyers can fully enjoy these goods since they must be free of flaws. If the notion of latent defect is rather easy to understand (a), regrettably, its regime is not shaped for consumers' use (b).

a. The notion of latent defect

Firs of all, it is worth noting that latent defect is a guarantee due by the seller to the buyer and does not have any contractual basis. The notion of latent defect refers to the quality of the good. More precisely, the good delivered must not contain any hidden defect preventing the buyer from using it. The notion of latent defect is best

described by detailing the four conditions a flow must fulfilled to be regarded as a hidden defect.

i. The existence of a defect

A defect is a flaw which affects the utility of the good or decreases so much its potential use that the buyer would not have acquired it or would have purchased it for

132

a much lower price . As an example, a coffee-maker which is unable to make coffee or a car which brakes are not working would both be considered as containing a latent the good 133

defect. The defect is ascertained as regard norm use

al of the , not

the particular use a buyer might make of it134. However, if such specific use is known
by the seller135 or if the good is sold especially for a specific purpose, then the defect
will be determined with regard to this particular use136. As an example, a dog sold for

reproduction is not expected to have the same pet 137

qualities as a dog sold as a .

Generally speaking, proving the existence of a defect is not difficult.

ii. A defect affecting the utilisation of the good

The defect must affect the utilisation of the good, which is to say that it must not be too slight138. As an example, a car which is a bit noisy when driven in reverse would most likely not be considered as defective. It is important to note that the gravity of the defect is assessed in a different way depending upon the remedy requested by the buyer. Indeed, judges are likely to be stricter when evaluating the seriousness of the flaw if the buyer asks for the resolution of the contract rather than a price

reduction139. However, consumers who are in good faith generally do not have problems in showing that the defect is serious enough.

iii. A hidden defect

This condition is the non-apparent 140

double. First, must

defect be , as a laptop which

cannot go on the internet for example. Being non-professional, consumers are not required to inspect the good but only to be reasonably caution when purchasing141. Thus, no judge would expect a consumer to verify that a lawn mower is in practice able to cut the grass for instance. As such, except if they are acting in bad faith, buyers will not have problem as regard the fact that the flaw must be non-apparent.

defect must be buyer 142

Moreover , the also unknown from the . Indeed, if the latter

actually knows that the television he is purchasing can only provides the programs in black and white, he or she cannot complain on such ground later. The buyer is presumed to be unaware of the defect affecting the good and it is the seller who has to prove that such flaw was already known purchasing 143

by the buyer when . Thus, here again, consumers acting in good faith will generally not face any problem as regard their ignorance of the flaw.

iv. A defect anterior to the purchase

Finally, the defect must exist prior to the purchase of the good and, more precisely,

144

before the property over the good transferred

is . On this matter, it is important to

distinguish the origin of the defect from the moment when it manifests. As an

example, if an animal becomes ill after its purchase but it can be proved that the virus which caused the illness was already in the animal's blood before it was bought, then the buyer can claim that there is a latent defect. However, the proof of the anteriority has to be provided by the buyer, which is in practice very difficult unless the defect

145

appeare d very quickly after the purchase of the good . Indeed, even though there is
no presumption as regard the anteriority existence of the defect, as it is the case in
the Directive of 1999, in practice, judges infer the existence of a latent defect from the

146

fact that the problem appeared soon after the good has been bought . To put it concretely, consumers experiencing problems soon after they have bought a good will generally no have problem to prove that the defect existed priori to the purchase.

In other cases, in practice, an expert is often used in order to prove that the defect was already latent in the good before its purchase147. Such necessity can be very onerous for buyers since they have to pay for the expert and are reimbursed only if they win the case. Thus, in practice, consumers can be deterred from going to court and ask for an expert's evaluation. Indeed, a fair quantity of problems encountered by consumers concern inexpensive goods which worth neither the trouble nor the costs of asking an expert to prove the anteriority of the defect.

However, if buyers can prove that the problem affecting the good fulfills these four conditions, they will be able to claim for a remedy.

b. The regime of the action

Before going any further, it is interesting to notice that the rules governing the reception of the good as regard the «obligation de délivrance conformeÓ do not apply to latent defect148. This seems in fact logical as latent defect are hidden and as only the apparent non-conformity of the good is covered by its reception.

If the time limit to lodge a claim is long enough (i) the functioning of the remedies available makes it hard to use for consumers (ii).

i. The period during which a claim can be lodged

Prior to the Ordinance of 2005, buyers could only complain within a brief period (Òbref délaiÓ) discovery good 149

after the of a defect affecting the . Such brief period was

rather unclear150 and led to several disputes in cases law until it was recently abandoned and replaced by a period of two years151. This period is to be distinguished from the the of 1999 152

one provided for in Directive . Indeed, albeit they

both provide for a two years length of time during which buyers are entitled to lodge a claim, the period begins at the discovery of the defect for buyers complaining for a latent defect whereas it begins right at the delivery of the good for consumers complaining for non-conformity on the ground of the ordinance of 2005. Thus, the period of two years stated in the Ordinance is mechanically shorter. This difference is paradoxical since on this point, it can be more interesting for a consumer to rely on the regime of latent defect, as a professional buyer, than on the specific regime especially designed for consumers.

In addition, the period provided for in the Ordinance is close since it begins at the delivery of the good. Conversely, the period stated for latent defect is open for it only begins at the detection of the defect, providing that such detection can be made years after the delivery of the good. As a matter of fact, judges are ready to accept that a latent defect can be discovered more than 200 years after the creation of the good153. This case shows that the regime of latent defects does not provide any security to sellers who can receive claims many years after the delivery of the good. For this reason, such open period can be questioned as it leads to legal uncertainty for sellers. Moreover, the open period is also problematic since it relies on the good faith of buyers who can make up the moment of discovery of the defect to avoid the two years time limit.

However, the advantages of an open period appear to surpass its drawbacks. First of all, it can be noted that in practice, the more buyers will wait before they complain and the more it will be difficult for them to prove that the defect existed prior to the purchase of the good and that it does not result from the normal wear and tear resulting from its utilisation. In addition, the life span of numerous goods is much longer than two years so an open period is adjusted to each kind of good. Conversely, a closed period of two years is too short for goods such as car or washing machine which are expected to last longer than two years and for which a latent defect can be discovered after such length of time. Furthermore, it would be unfair to deny any right to complain to buyers who discover a defect after two years following the delivery since they would be in a situation where they had lost a right before knowing they had it154.

In any case, as for non-conformity, the open period for latent defect is not indefinite since the statute of limitation stated in article 2232 of the Civil Code applies. Accordingly, buyers have a maximum of twenty years to complain from the moment they purchased the good regardless of the moment they detected the defect.

ii. The remedies

First of all, it is worth noting that the obligation lying on sellers to provide a good free
of defect is an obligation of result (obligation to achieve a certain result). Thus, the

155

fact that sellers are unaware of the flaw affecting the good or did not commit any fault156 is immaterial and will not stop buyers from obtaining a remedy.

Pursuant to article 1644 of the Civil Code157, buyers who purchased a good with a
latent defect have the choice between two remedies: resolution of the contract (á)
and price reduction (â). The choice given to buyers between these two remedies is

158

absolutely free, which is really favourable for buyers . In addition, buyers can also claim for reparation or replacement of the product affected by a latent defect (ã). Finally, in any case, buyers are entitled to damages for any loss they have suffered as a result of the non-conformity of the good (ä).

á. The resolution of the contract («action rédhibitoire»)

Resolution is the most used remedy159 and leads to the termination of the contract
with retroactive effects. Generally speaking, the effects of the resolution for latent

defect are the same as those applicable for the resolution for non-conforming goods160: the return of the good to sellers and a full refund for buyers. The slight differences in terms of regime will anyway be highlighted.

Resolution provides buyers with a really strong bargaining power since they can still

161

terminate the contract even after a rep air has been carried out if it failed . In
addition, they can impose resolution to sellers even if they have first asked for price

162

reduction or for the replacement of the good . However, contrary to the «garantie des vices cachés », to obtain the refund, the buyers need to return themselves the good to the sellers163. In addition, if sellers cannot claim for an indemnity on the ground that the buyers used the good 164 , they can however, contrary to the solution applicable for non -conformity, ask for a compensation for the depreciation of the good165.

At first sight, it seems that the rules are rather harsh for sellers since as soon as a latent defect is detected, they can lose the contract and all the benefits pertaining to it. On the other hand, however, as highlighted as regard non-conformity, buyers still have to ask a judge to order the resolution. Thus, here again, such rule is rather difficult to put in practice by consumers when the good purchased is not of great value.

â. Price reduction («réfaction» or action quanti minoris)

Instead of resolution, buyers can also ask for price reduction. Accordingly, they will
obtain a sum of money corresponding to the difference between the price paid for the

good and its actual value when taking into account the defect166. It is important to note that technically, the fraction of price given back to buyers has to be decided by experts167. Thus, consumers confronted to a latent defect need to go to Court to obtain a price reduction. Such process is heavy and is likely to discourage most of them from so doing, unless the good concerned is of great value.

y. Repair or replacement of the good

Buyers can also choose specific performance and can thus ask sellers for a repair or the replacement of the good168 . Generally speaking, these remedies are preferred by sellers who then do not lose all benefits arising from the contract. As regard replacement, it seems that such remedy can be asked by the buyers when the good purchased is not individualised and can be replaced by another good which is exactly the same as the former one. As a example, a new car is a good w hich is not individualised and can be replaced whereas an original 1956 Thunderbird purchased in 2010 is unique and could not be replaced if it proves itself to be defective. Theoretically, repair and replacement have to be ordered by a judge.

However, in practice, buyers can threaten sellers of resolution in order to obtain the replacement of the good or its reparation169. This depends however upon the respective bargaining power of the parties. As far as consumers are concerned, this bargaining power is often small and they can experience difficulties in the obtaining of this kind of remedy.

ä. Damages

Regardless of any other remedy chosen, buyers can also claim for damages for the
losses they suffered170. Damages can be obtained for the compensation of a wide

171

variety of prejudices corresponding to the costs which arose from the sale , the unavailability of the good172 or, more broadly, to all the costs caused by the defect itself173.

The obtaining of damages is subject to the proof of the defect, the prejudice it caused and the casual link between them both. No further conditions are required to obtain compensation for the costs which arose from the conclusion of the contract174.

However, for the obtaining of any other damages, the bad faith of the sellers has to be proved. In fact, sellers are in bad faith if they knew that the good sold contained a latent defect175. At first sight, it seems that this proof is very difficult to show. However, all professional sellers are deemed to be aware of all defects affecting the goods they sell, providing that such presumption is conclusive unless the buyer is also a professional from the same specialty176. Thus, at least when contracting with consumers, professional sellers are always considered as being in bad faith and are thus always liable for all damages resulting from the latent defect affecting the good. This is very protective of consumer interests.

3. The Directive's implementation in France

Directive without deficiencies 177

The has been transposed in French Law by the

Ordinance of 2005 and can be found in the Consumer Code from article L. 211 -1 to L. 211-18178. As the Directive's content has already been analysed, we will only look at the specificities of the French measure of transposition and what is new compared to the existing legal framework in France.

First of all, it is worth noting that the scope of application of the Ordinance is much narrower than the one of latent defect and the «garantie de conformity». Indeed, the Ordinance only applies to contracts concluded between consumers and professionals179 and which concern tangible movable items180. However, consumers are free to choose any regime they want and do not have to rely on the Ordinance of 2005181. On the one hand, this situation is a good thing as all three regimes are different and, depending on the problems they encounter, consumers will be best protected by a different set of rule182. On the other hand, this situation can be criticised as leading to confusions for consumers, especially the less educated one183, who are rather unlikely to understand easily their rights.

The two main important points of the Ordinance of 2005 concern the notion of non conformity (a) and its regime (b).

a. The notion of non-conformity

The notion of non-conformity itself is at the core of the transposition of the Directive184. Indeed, as it is a monist conception which is thus new compared to the existing framework in France, its transposition was carried out very carefully. To make it simple, according to the new concept of conformity, goods have to be as specified in the contract agreed between the consumer and the seller (equivalent to the Ògarantie de conformityÓ) and must also be able to work properly (equivalent to the latent defect).

It is worth noting that France transposed the notion of non-conformity differently from the way it is provided for in the Directive. Indeed, the Directive provides for a presumption of conformity when some criterions are fulfilled whereas France only provides for a general about fitness 185

requirement goods' . Moreover, the French

transposition of the notion of non-conformity is dual, but not as the provisions of the Civil Code186. Indeed, it distinguishes between contracts which are negotiated and those which can only be agreed as such and cannot be negotiated, the so-called adhesion contracts187. Accordingly, to be conforming, a good must:

· Correspond to the use usually made for this kind of good and, if applicable, to the description and the sample given by the seller and to the public statement made by the seller or the producer 188; or

· Have the characteristics specifically agreed by the parties or correspond to the use the consumer is willing to make of the good as long as such use has been known and agreed by the seller189.

Such distinction is rather well-thought and intellectually relevant as there is, in practice, a clear distinction between adhesion contracts and contracts which can be negotiated and for which the consumer can ask for specific requirements. Moreover, it can be noted that this distinction is not completely different from the distinction between latent defect and the «garantie de conformité» in the Civil Code. Indeed, whereas the part referring to adhesion contracts190 broadly corresponds to the «garantie de conformité», the part about negotiated contracts191 corresponds in fact to the concept of latent defect192.

In addition, as with latent defect and in accordance with the Directive, the nonconformity good must be ignored by the consumer 193

of the and cannot take its origin

in the materials himself 194

the consumer provided . Likewise, the seller cannot be held

liable on the basis of public statements he was not and could not reasonably be aware of195 although, conversely to the directive, no reference is made to the correction of the public statements and the fact that the consumer might not have been influenced by them196. This difference is thus more protective of consumers who are less likely to face a denial of their right from sellers claiming the irrelevance of such public statement.

Furthermore, it can be noted that, as in the Directive, France did not assimilate the delivery of the wrong quantity of goods to non-conformity. This solution was nonetheless conceivable and has in fact been carried out by Germany197.

The only difficulty as regard the notion of non-conformity and its inclusion in the
French legal system is that nothing is specified as regard the importance of the

198

reception of the good . Indeed, as already highlighted as regard the «garantie de conformité», when being delivered, it is important that the consumer expresses reservation if the good seems to be non-conforming, or even refuses it. Otherwise, he will not be entitled to claim for any apparent non-conformity. As nothing is specified, one can wonder whether such obligation is also applicable for consumers under the new regime199. This is a fairly important question as regard the consequences at stake: the lost of all rights to claim remedy for the consumer. Regrettably, no case law has clarified this point yet and consumers are thus advised to make all reservations as regard possible non-conformity of the good when it is delivered to them.

b. The regime of non-conformity

Whereas the time limit during which consumers are entitled to complain is not so much protective and not free of defect (i), the presumption of anteriority is a new and very welcome provision in French law (ii) and the functioning of the remedial scheme, although providing for a hierarchy, appears to be rightly designed for consumers (iii).

i. The period during which a claim can be lodged

The Directive of 1999 provides for two distinct length of time during which consumers
can claim for non-conformity, one of two years from the delivery of the good and
another one of two months from the moment when the consumer detected the non-

conformity200. However, providing that the Directive is of minimal harmonisation, France decided to transpose only the first period. Accordingly, consumers confronted to a non-conforming good have two years from the delivery to complain201.

The fact that the two months period has not been transposed in French law is
satisfactory for consumers who then enjoy a longer period to complain. However, the

202

two years period duly implemented is rather short , especially for goods which are expected to last much longer such as televisions or bicycles for instance. Moreover, this two years period begins right at

the delivery of the good and not, as for latent defect, when the defect is detected. As a consequence, consumers discovering a defect three years after the delivery of the good will then not be allowed to lodge a claim. This is highly questionable as they will have lost their right before even knowing they had it.

Finally, it can be noted that no clue is given as regard the applicability of the two years time limit to the claim for damages, in particular when no other remedy is asked by the consumer203. Indeed, damages are not provided for by the Directive and their allocation is thus governed by national laws. This is an important question as if the time limit does not apply consumers who are late to claim for other remedies will be willing to obtain their compensation on this other ground. As such, this legal uncertainty is questionable.

ii. The presumption of anteriority

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The non -conformity of the good must exist prior to its delivery . In conformity with the Directive, all defects arising within six months following the delivery of the good are deemed to be anterior205 . This presumption can be fought if the seller can prove that the presumption is not compatible with the nature of the good or with the non- confo rm ity206. Indeed, as an example, a tomato is obviously not supposed to last six month.

Such presumption is a great step forward for consumers since it did not exist in French law prior to the Ordinance of 2005. Albeit judges were sometimes lenient and easily ready to regard any defect appearing soon after the delivery of the good as being anterior to the delivery207, as a matter of fact, the proof lying on consumers was rather burdensome.

iii. The remedies

The Directive of 1999 provides for four remedies in case of non-conformity and, most importantly, provides for a hierarchy as regard the choice between these remedies. The transposition operated by the Ordinance is conformed to the Directive's provision208. As these provisions have already been detailed (A. The Directive of 1999 on certain aspect of goods and associated guarantees), they will not be recalled here. However, the principle of a hierarchy is questionable as it lowers consumers' choice and, thus, their bargaining power. As a matter of fact, this hierarchy is not protecti ve of consumers' interest since terminating the contract or

obtaining a price reduction are legitimate claims which should not be granted only as second tiers remedies.

In accordance with the Directive, resolution is not available for a minor nonconformity and the remedies must be carried out free of charge for consumers. However, conversely to the Directive, the Ordinance specifically allows consumers to claim for damages209.

As compared to the two-hundred-years old regimes set in the Civil Code, the new one provided for by the Ordinance in accordance with the Directive does not refer to any judge's help. This means that in daily transactions, consumers can claim for remedies directly to the sellers and need not to give any formal notice or to ask a judge to provide the remedy210. This is also true for the resolution of the contract which can be, though as a second tier of remedy, decided by consumers on their owns. Likewise, it is self-evident that the first tier of remedy provided, replacement or reparation, has to be asked directly to the seller. As a matter of fact, it is only if the sellers refuse to carry out any remedy that consumers will face a dilemma: does the goodÕs value worth the trouble and the money to go to court? As such, assessed only on thi s highly practical ground, the new regime is much handier, and thus much more protective of consumers.

C. The current regime in the UK - A unified and efficient regime

The current regulatory framework applicable in the UK is based on the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994 (the SoGA) and by the Sales and Supply of Goods to Consumer Regulations 2002 (referred to as the Regulations)211 which transposed the Directive of 1999. Thus, the regime applicable to all buyers and the one applicable only to consumers as resulting from the Directive of 1999 are both laid down in the same Statute. As a result, consumers benefit from the general provisions laid down for all contract of sales as well as from the provisions especially designed for consumers sales. As the regime especially designed for consumers fits naturally in the general framework of contract sales law212, the law applicable to consumers is particularly clear. This is especially true in comparison to the French regime. Moreover, it is worth noting that oddly enough, the French regime has been greatly construed by judges and do not rely as much on writing rules than the English system which is plainly established on the SoGA.

In addition, the UK's notion of non-conforming good is unique and encompasses both the French notion of latent defect and the Ògarantie de conformitéÓ. As such, both the complexity and the confusion pertaining to the French legal system on this matter are avoided. Moreover, more than being clear, the regime set in the SoGA is particularly protective of buyers as it offers them remedies, and in particular the right of rejection, which use is simple and which can be exercised without any judge's help. As such, buyers, and in particular consumers, are granted with a strong bargaining power and are thus well-protected.

Before going any further, it is important to keep in mind that within the UK, the English, the Welsh and the Northern Ireland law can sometimes be different from the Scottish law213. Thu s, all relevant differences will be highlighted throughout our analysis.

Except on a few issues adapted to consumers, the notion of non-conforming good is a unique and general one applicable to all buyers (1). Conversely, the remedial scheme is dual: one laid down for all contract of sales and available for all buyers without restriction and another one especially drafted for consumers (2).

1. The notion of non-conforming goods

Non-conforming goods will also be referred to as faulty goods. Goods do not conform

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when there are in breach of an express or an implied term of the contract of sales . The first hypothesis is easily understandable: a seller who expressly states that the mobile phone sold can go on the internet whereas in fact it cannot is in breach of an express term of the contract. As a consequence, the buyer is entitled to all contractual remedies available for breach of contract. Conversely, the concept of «implied term», detailed in sections 13, 14 and 15 of the SoGA, is not self-evident from a continental point of view. Yet, it is at the core of buyers' protection in contract of sales and is one of the most used provisions of the SoGA215.

The notion of «implied term» is a system whereby some goods' characteristics, being regarded as of great significance, are considered as being included in all contracts of

sales exactly as if the parties have decided to include it themselves216. As the parties have never specifically agreed on this point, this system of implied terms is a «legal fiction».

If a good does not comply with one of the implied characteristics detailed in the SoGA, the seller is in breach of this term, which is to say in breach of contract. In English law, there are two kinds of breaches of contract: the breach of warranty, which is regarded as a minor breach, and the breach of conditions which is regarded as an important breach217. Only the latter breach gives without contest a right to the party who suffered it to terminate the contract218 . However, as far as consumers are concerned, this distinction is most of the time irrelevant. Indeed, the SoGA provides that as regard consumers' sales, minor defects or minor non-compliance are always treated as breaches of conditions219 . As a result, providing that sellers cannot exclude any implied term i n a consumer contract220, consumers confronted to a nonconforming good are entitled, regardless of the seriousness of the defect, to all contractual remedies, including the termination of the contract.

Furthermore, sellers cannot defend themselves by arguing that they have done all

221

they could to ensure that the good was of quality

satisfactory . Such provision is

equivalent to the French notion of obligation of result whereby a party has to achieve a certain result and does not have any way of defense if such result is not reached. This provision is thus protective of buyers' interests as there is no debate as regard the existence of a fault attributable to the seller.

The implied terms specifically stated in Sections 13, 14 and 15 of the SoGA are only

222

the basic one and the list provided is thus not comprehensive . As a result, a buyer
can always argue that a particular trade or local custom exists and provides for

223

another implied term not listed in the SoGA . Likewise, buyers can also claim that a

224

particul ar term, though not listed, is necessary to give to the contract its efficacy . As an example, in Mash and Murrell v Joseph I Emmanuel, the goods' ability to withstand the journey which had to be done was considered as an implied term of the contact. Thus, as the potatoes did not withstand the journey, they were regarded as non-conforming225.

The system of implied terms is rather inventive. Indeed, as it has a contractual basis, it gives the right to consumers, in any case, to escape from a contract which provided them with a faulty good. Thus, consumers are granted with a strong bargaining power. As a consequence, consumers' claims for a repair or a replacement for instance are likely to be agreed by sellers who are threatened by the fact that consumers might impose the termination of the contract. However, sellers can always choose to ignore consumers' claim. Consumers would then have to go to court to obtain the refund. Nonetheless, this system seems better than the French one laid down in the Civil Code whereby most of the times, consumers' claims for a remedy must be commanded by a judge.

Three main matters are of significance as regard the goods' conformity to the implied terms of a contract. More precisely, to comply with the implied terms stated in the SoGA, a (ii) 227

good must be as described (i) 226, must be of « satisfactory quality» and

must fit with its purpose (iii)228.

i. The goods must comply with their description or with the sample

Section 13 of the SoGA provides that in sales by description, there is an implied term that the goods sold will correspond to their description. Albeit there has been many debates surrounding the notion of description» 229

«sales by , it is nowadays assumed

that every good which contains words of description, on their packaging for instance,
are sales by description230. Thus, it can be said that virtually all sales are concerned
with the provisions laid down in Section 13. However, that does not mean that all

231

words written in relation to a good are treated as part of this good's description . Indeed, what is important good 232

is whether the words are used to describe the and

whether the buyer relied on the description before purchasing the good233.

Where a contract of sale is regarded as a sale by description, judges have to decide whether a given good complies with the description attached to it. As a matter of fact, judges appear to be largely in favour of buyers and to regard any slight discrepancy between a good's description and its real characteristics as being a breach of the implied term that the good must conform to its description. As an example, cans were regarded as being non-conforming to their description where, though the right number was delivered and their packaging was irrelevant for the buyer, they were packed in boxes of 24 instead of boxes of 30234. As a result, Section 13 of the SoGA appears to give buyers an efficient ground on which they can rely when they are confronted to a good which is not as described by the seller.

In addition, if the sale is a sale by sample, the SoGA specifically provides that the good must be free of any defect which is not apparent on a reasonable examination of the sample235 . One the one hand, this means that buyers cannot complain for a defect which was apparent on the sample. However, on the other hand, it is easy for buyers to show that the good purchased does not comply with the sample presented and that it does not conform. The significance of this provision must not be underestimated as some kind of sales are usually made by sample, such as the sale of paving for instance.

ii. The goods must be of Òsatisfactory quality»

Under the Sale of Good Act 1893, any good which was not of «merchantable quality» was regarded as faulty236. However, the Sale and Supply of Goods Report drafted by the Law in 1987 237

Commission and the

Scottish Law Commission criticised such

condition as being unclear for both buyers and sellers238 and suggested instead that goods should be of «acceptable quality». This report led to the amendment of the SoGA 1979 by the Sale and Supply of Goods Act 1994 which provides that goods must be of «satisfactory quality»239 .

Section 14 of the SoGA details all the characteristics which make a good of satisfactory quality. Accordingly, goods are considered as being of satisfactory quality if «they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all other relevant circumstancesÓ240. More precisely, the terms provided by the SoGA includes the goods' state and condition, their fitness for the purposes such kind of goods are

usually used, their appearance and finish, their freedom from minor defects, their

241

safety and their durability . As already highlighted, all elements which make a good of satisfactory quality are described in the SoGA as being «implied terms» in all contracts of sales242.

In practice, the assessment as to whether a good

is of satisfactory quality or not can be very difficult to carry out and depends upon numerous factors such as the good itself and the circumstances of the sales. Indeed, as an example, the good's age and

243

price is of great significance since a cheap or an old good is not expected to reach

244

a level of quality as high and to perform as well as an expensive or a n ew one . Section 14(2A) provides specifically that the good's price is taken into consideration as being part of the « other relevant circumstances». No specific reference is made to the age of the good but, in fact, judges take this element into account on the same basis, which is to say as being part of the «other relevant circumstances».

Moreover, it is worth noting that sellers are protected as regard all defects and specific points they have shown to the buyers before the purchase. Indeed, such matters are not considered as implied terms and consumers cannot complain about them245. Likewise, if an examination is done prior to the conclusion of the contract, defects which are apparent on a reasonable examination of the good or which are ought to be revealed by such examination are not regarded as implied terms either246. However, buyers are not required to carry out such examination, which is a good point . In addition, it must be noted buyers cannot claim for remedies in case of fair wear and tear or if they misused the good247.

In addition, when the buyer is a consumer, the Regulation, in accordance with the Directive it has transposed, adds another implied term. Indeed, Section 14(2D) of the SoGA includes in the « other relevant circumstances» the public statements on the good made by the seller or the producer, especially those made in advertisings or on the labeling. However, sellers can defend themselves by showing that they were not aware and could not reasonably be aware of this public statement, that such statement has been withdrawn or corrected in public or if they prove that the consumer could not have been influenced by the statement248. In such cases, sellers will not be regarded as being in breach of contract.

iii. The goods must fit for their purpose

Section 14(3) of the SoGA specifically provides that when buyers makes known to sellers that they intent to use of good for a particular purpose which is different from the normal use such kind of goods are usually purchased, the good must fit for this specific purpose249. Here again, what is important is the description of the good, an issue already dealt with under Sections 13 (sales by description), 14(2A) and 14(2D) of the SoGA. However, the specificity of this provision is that it allows more flexibility for buyers. Indeed, they can buy a good for a specific use which requires qualities not included in the good's description without loosing the protection they are granted with. However, the particular use the good will be used for must be drawn to the sellers' attention250.

If, somehow, the goods are non-conforming, the sellers are in breach of contract and, subsequently, consumers can claim for remedies.

2. The remedies

In addition to the remedies stated for all buyers (a), Section 48 of the SoGA also provides for specific remedies especially designed for consumers by the Regulations (b).

a. The traditional remedies in the UK

As highlighted above, a non-conforming good is a good which does not fit with the implied terms stated in the SoGA or any other relevant terms as those agreed by the parties or those coming from customs. Sellers delivering faulty goods are in breach of contract and buyers are thus entitled to remedies. These remedies can be the termination of the contract and the rejection of the goods (i), the withholding of performance (ii), specific performance (iii) and damages (iv)251.

i. The termination of the contract and the right of rejection

The termination of the contract and the right of rejection are two different figures (á) but as far as consumers are concerned, the right of rejection is emblematic and the focus must then be put on it (â).

á. An overview on the termination of the contract

First of all, when consumers are entitled to terminate the contract that does not mean
they must do so. Indeed, in English law, the termination of the contract is seen as a
matter of «election» and the party who suffered the breach can choose to terminate

252

the contract or to continue its performance (affirmation of the contract) . No

particular from choice 253

is required to make the and the only thing which matters is

»254

that there must be « unequivocal words or conduct . Thus, consumers should be aware that their choice can be, for instance, inferred from the mere fact that the good is rej ected 255. This shows the ambiguous relationship existing between the right of rejection and the right to terminate the contract, especially in contracts of sales.

The rejection of the good is a way for the aggrieved party to express his choice to terminate the contract. However, in practice, the rejection of the good does not necessarily lead to the termination of the contract. As an example, say a seller has a period of time of one week to perform a contract which consists in the delivery of a television. If he delivers it on Day 2 but it appears to be non-conforming, then the buyer can reject the good but wait for another delivery to be made on time. Thus, if a conforming good is delivered on Day 5, the buyer will have exercised his right of rejection without terminating the contract. As regard consumers, we have seen that

256

any non -conformity, even slight, gives them the right to terminate contract

the . However, this does not force them to do so and they can instead wait for a conforming delivery to be done.

On a more intellectual ground, the termination of the contract is the proper name of the remedy consumers are entitled to when they suffer a breach of contract. Thus, as far as they are concerned, talking about the right of rejection as a remedy is an abuse of language as it is only a modality of exercise of the right to terminate the contract.

It shall be noted that the termination of the contract is not the equivalent to the French resolution for latent defect or «garantie de conformitéÓ. Indeed, as r egard resolution it is assumed that the co ntract has never existed and its destruction has thus retroactive effects. Conversely, the UK's notion of termination does not entail any retroactivity and the contract simply goes to an end257. Thus, in practice, consumers can claim damages on a contractual ground.

As consumers' most common and known way to terminate the contract is by rejecting the good, we will especially focus on it. We will nonetheless keep in mind that it remains a mere modality of the termination of the contract.

â. A focus on the right of rejection

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The regime pertaining to the right of rejection has been created by cases law and was first codified in the Sale of Goods Act 1893 though it was not defined there and has never been defined in any statute since. In practice, the right of rejection is very popular amongst consumers as they do not have to litigate but only to tell the sellers that they reject the good. It is thus to sellers to decide whether it is worthwhile to go to court or not. As such, the right of rejection is seen as one of the most emblematic

provision protecting consumers in the UK. Before detailing further its use for consumers, it is worth noting that in addition to non-conforming goods, those delivered late 260

in wrong quantity 259 or delivered can be rejected by consumers. This

precision is important since late delivery of goods is a matter of great significance in consumers' sales. Allowing them to take an efficient action in this case is thus a good way to protect them.

The most problematic provisions as regard the right of rejection concern the examination of the goods, their acceptance and the length of the reasonable period. The exercise of the right of rejection will also be further detailed.

The examination of the good

The first point which was discussed in early cases law was the existence of an
obligation to inspect the goods prior to the purchase. Albeit such inspection was

261262

required until the mid -twentieth century , it was later abandoned and buyers were then given the right to inspect the good after the property passed and to reject it in case of non-conformity263. This step forward was established in law with the 1994 amendment of the SoGA264 and is to be approved. Indeed, it does not seem reasonable to me to require from buyers, especially when they are consumers, to examine all goods before they acquire them. It seems better to give them some time after the purchase to do so.

The acceptance of the good

The right of rejection is granted to consumers confronted to faulty goods as long as they do not ed good 265

have accept the . Indeed, pursuant to Section 11(4) of the

SoGA, the breach of contract is to be treated as a breach of warranty if the buyer has accepted the good. As already highlighted, a breach of warranty does not give buyers the right to terminate the contract. Thus, if the good has been accepted, consumers cannot reject it.

Acceptance occurs when consumers:

> Intimate to sellers that they have accepted the goods (intimation)266;

> Use the good in a manner which is not consistent with the seller' s

ownership of the goods (inconsistent act, providing that consumers do not

act in such a manner by merely asking the seller for repair267); > Keep the good during a reasonable period268

The first two conditions leading to the acceptance of the good are rather clear. Intimation does not lead to any difficulty as the consumer positively expresses its acceptation of the good. Likewise, the use of the good in an inconsistent manner is usually rather clear. What is in fact difficult to assess is the acceptance inferred from the retaining of the good during a reasonable period. Such issue is of great practical significance providing that most of the times, acceptance is actually inferred from the

fact that consumers keep the good without complaining during a reasonable period of time.

The reasonable period

What exactly amounts to a reasonable period of time is not clearly stated and can
hardly be anticipated269. Indeed, little cases laws are available to make this point

clearer270 and some contradictory 271

of them are even . That is why the assessment of

272

the reasonable period is regarded as a matter fact

of . Thus, only general

observations can be drawn as regard the length of a reasonable period and what is relevant for its calculation.

First of all, consumers are not considered as having accepted the good until they had the opportunity to examine them and to ascertain whether it is of satisfactory quality273. However, providing that such examination of the goods can take place after the purchase, in of period 274

it has consequences the length the reasonable . As

such, the reasonable period cannot be less (but can be more) than the time it takes to examine the goods purchased275. However, it is important to keep in mind that the issue is whether the buyers had the time to inspect the good, not whether they had the time to discover the defect. Thus, as a matter of fact, the reasonable period often ends prior to the detection of the defect if it is hidden.

276

More precisely, t he Truk case provides that a reasonable period is the period

during which a rejection is reasonable as regard the buyer and the seller' s situation.

As an example, in the Berstein case, the buyer was ill and the judge took this fact into consideration in the assessment of the reasonable period.

Even though no exact anticipation as to the length of the reasonable period can be made, it is important to note that Consumer Direct, an online service giving advices on various issues concerning consumers and funded by the government, reports that after two weeks, consumers often have trouble to exercise their right to reject. However, the period during which consumers can reject goods is probably longer than two weeks277. This example shows clearly that uncertainty leads directly to practical difficulties and to a decrease in consumers' rights.

Admittedly, the right of rejection must be limited in time as otherwise it would lead to legal uncertainty for sellers. However, this limitation should be clearly stated, or, at least, more guidance should be given. Indeed, if the right of rejection is per se very protective of consumers, the fact that they can only exercise it during an undefined period of time undermines their right. This uncertainty is thus highly questionable and is to be regretted.

In addition, it appears that the period of rejection is rather short, probably not more than two or three months at most. Thus , when confronted to latent a defect or latent non-conformity which is often discovered months after the delivery of the good, consumers will not be able to reject the good and will thus loose all the bargaining power this remedy offers them. Thus, I believe that the period of time during which a good can be rejected should be longer, six months for instance. This is the same period as the one stated in the Directive and which concerns the presumption of

anteriority of the non-conformity. Both provisions are, in nature, very different. However, as they both put the consumer in a strong position when confronted to a faulty good discovered shortly after the delivery of the good, it makes sense to me to set a similar period for both of them.

The exercise of the right of rejection

Buyers exercise their right of rejection by intimating the sellers of such rejection.
Thus, the strength of the right of rejection lies on the fact that buyers can freely use it

278

and need not to obtain its application by a judge . They only need to do so if sellers refuse to refund the price paid279. More than the content of the right itself, I believe that giving the power to terminate the contract directly to buyers is per se the best way to protect them. Moreover, unless otherwise agreed in the contract, buyers do not have to return the goods to the sellers who have to take them themselves280.

If faulty goods have already been accepted, no matter how, buyers have lost their right to rejection but are still entitled to damages.

ii. The withholding of performance

Conversely to France, under the SoGA, the delivery of the good and the payment of

281

the price ar e concurrent conditions . This means that sellers must be willing to transfer the possession of the good in exchange of its price in the same time that buyers must be willing to pay the good in exchange of its possession. Thus, under this scheme, in principle, no party can withhold performance as this performance is a

of contract 282

condition the . However, parties can provide that one of them, the seller

for instance, must first perform his obligation. In our example, the buyer 's performance would then be conditional on the seller having delivered the goods. Then, if the seller does not deliver the goods, the buyer will be entitled to withhold performance283.

However, this kind of agreement is rather uncommon in consumers' sales and, in any case, consumers are generally required to pay before or at the delivery of the good. Thus, they can rarely use this right.

iii. Specific performance: theory and practice

Under the SoGA, buyers are entitled to specific performance 284 . However, it is to be noted that as compared to civil law countries, this remedy is not automatic and rather hard to obtain from a judge. Indeed, courts are generally reluctant to command specific performance since it is assumed that when other remedies are more

285

adequate, then they are ought to be com manded instead . Thus, as far as ordinary goods are concerned, it is considered that it is more adequate for buyers to obtain a refund and then to buy another good to another seller than to obtain specific performance286. This remedy is then difficult to obtain for consumers since they are often concerned with ordinary goods.

However, in practice and even though there is no legal support for such claims,
consumers can ask for repair or replacement, which are forms of specific
performance. Indeed, when consumers are entitled to terminate the contract and

reject the good, they are also in a position which allows them to ask, instead, for another remedy. In practice, it is likely that consumers are only willing to have an efficient and conforming good and they need not to terminate the contract if they can obtain satisfaction in another way. As such, replacement or repair can then be satisfactory, or even price reduction if the defect or the non-compliance is, for instance, minor. As a mater of fact, unless such demands appear to be too expensive, sellers are usually happy to accept repair, price reduction or replacement instead of rejection of the good as thus, they do not lose all benefits arising from the contract.

iv. Damages

Consumers can claim damages, regardless of whether they have rejected the goods

288289

or not 287, in case of non -delivery , late delivery or delivery of faulty goods . The general requirements as to the conditions which must be fulfilled to obtain damages, such as the condition of foreseeability, will not be recalled. It is only important to keep in mind that the scope of damages which can be recovered in the UK is narrower than in France. Indeed, as an example, it is difficult for a party to obtain remedies for the benefits he was expecting to earn if the contract had been performed correctly. Likewise, consumers are unlikely to be able to obtain damages for distress, inconvenience or disappointment290. If fewer losses can be recovered in the UK as compared to France, as far as consumers are concerned, I believe that the rules stated are satisfying. Indeed, consumers are not concerned with businesses issues and with economic losses, for instance.

In addition, in contract law, the prejudiced party is under a general duty to mitigate his loss. This flows from the general principle that a plaintiff can only recover what arises in the course of events 291

ordinary . As regard consumers, that means they

have to report the non-conformity as soon as possible to prevent the good from deteriorating further or to cause any other damages292. Albeit this looks similar to the obligation to notify the non -conformity within a period of two months stated in the Directive, it is in fact different. Indeed, it only concerns the granting of damages and is only relevant when the non-conformity can, by its nature, deteriorate further the good or cause more damages. As such, this limitation seems reasonable.

As regard the assessment of damages, the SoGA provides guidelines which are
helpful to determine what can be recovered by a buyer confronted to a non-
conforming good . Accordingly, the measure of damages is the «estimate loss directly

»293

and naturally resulting in the ordinary course of event , from the breach of contract. More precisely, in case of faulty good, what can be recovered is the difference in terms of value between the faulty the one 294

product received and expected . In addition, consumers can also ask for damages for any losses caused by the defective good itself, such as the losses caused by a leaking dish washer for instance295.

b. The remedies especially designed for consumers

The Directive of 1999 has been transposed in English law by the Sales and Supply of
Goods to Consumer Regulations 2002 (the Regulation) which adds new rules as
regard consumers296. These new provisions can be found in Section 48 of the SoGA

and are perfectly included in the SoGA. Indeed, the new rules apply if the goods delivered do not conform to the contract of sale and they are non-conforming if they are in breach of the express or implied terms of the contract as provided for under Section 13, 14 and 15 of the SoGA297. Rules are therefore clear and the regime provided for all buyers is per se comprehensive and easily understandable.

Providing that the main features of the Directive have already been analysed, we will only highlight the particularities pertaining to the English transposition. First of all, it can be noted that the Directive is not deeply shattered by the Regulation. Indeed, the government assured that no lowering of the protection already granted to consumers

298

would flow from the transposition of the Directive . Thus, as an example, the Department of Trade and Industry, which was in charge of implementing the rules coming from the Directive, did not enforce the Directive rules about the consumers' obligation to notify any defect within two months of its discovery. To sum up, the new rules do not undermine consumers existing rights but only improve the one they already have .

One of the most important improvements for consumers is the fact that they have the

299

possibility to ask the sellers for the reparation or the replacement of the good , providing that such repair or replacement must not be carried out with significant inconvenience for the consumer and must be performed at the seller's costs300. Thus, consumers can efficiently rely on a legal ground to make such claim and not only on their bargaining power, as it was the case before. Such possibility is of great importance since most of the time, what consumers want is a good which works properly and are thus not necessarily willing to reject it.

As provided for in the Directive, the seller can refuse to access to the consumer's claim if replacement is disproportionate 301

the repair the

or impossible or and must

then rescind the contract or reduce the price of the good. However, as compared to the Directive, no hierarchy of remedy is provided. As a result, consumers can directly ask for rescission or price reduction without asking first for repair or replacement.

Finally, in accordance with the Directive, when a non-conformity is detected within a period of six months following the delivery of the good, the non-conformity is presumed to have existed prior to the delivery302. Thus, consumers can easily obtain one of the four remedies listed (i.e. repair, replacement, price reduction or rescission) if they find a problem with the good within such period. This is, again, an improvement of consumers' rights.

3. The time limit to lodge a claim

Buyers confronted to faulty goods can only claim for remedies within a time period of

303

six years from the sale in England, Wales and Northern Ireland and five years from the discovery of the problem in Scotland304. This time limit also applies to consumers since the two years time limit provided for by the Direct ive of 1999 has not been transposed in the UK.

The time limit is satisfactory in Scotland where it begins at the detection of the
problem. It can be argued that in England, Wales and Scotland there are situations
where the six years time limit beginning at the sale of the good will be too short.

Indeed, as regard some goods which are supposed to last for a very long time, such as cars for instance, buyers might discover that they do not conform after this period of six years has elapsed. However, I believe that six years is a rather long period which strikes a fair balance between buyers' protection and sellers' interests and needs for legal security.

***

The French and the UK's system are very different. Indeed, a consumer buying a good in London can rely on a single set of rules which he can easily put in practice without any judge's help. Conversely, a consumer acquiring an item in Paris has many grounds on which he can rely to complain, but most of them require him to go to court. Thus, generally speaking, consumers enjoy a better protection in the UK than in France. These differences show how diverse can be the protection of consumers and highlight the fragmentation of the legal rules applicable to consumers in Europe. This is at the core of the Commission's critiques and explains why the Proposal it has launched on 2008 aims at full harmonisation. However, arguably, nor the method of unifying consumer protection neither the Proposal's content are good ways to protect consumers.

II. The Proposal for a directive on consumer rights - How good is it for consumers?

The Proposal for a directive on consumer rights is part of a process of reviewing the Consumer Acquis 305 which started in 2004 with the aim to simplify and complete the existing regulatory fram ework regarding consumer law306. The objective of the Review is the creation of a consumer internal market which rightly balances the call for competitiveness in the business field and the need for high protection as regard consumers307. Albeit these two aims seem at first sight divergent, providing that an adequate balance is stricken in the Proposal, the rules it lays down are said to have many positive consequences for both consumers and business308. Before going any further, it shall here be recalled that the Proposal brings together four existing Directives309. However, as defined in the introduction, this work is only aimed at analysing some of the consumers' rights provided for under the Directive of 1999.

The objectives pursued by the Commission are described at length (A). However, when confronted to the content and the form of the Directive, the Proposal seems unable to achieve its goal (B). Thus, as the basis on which is erected the Proposal is undermined, there are calls for new approaches capable of reaching the aims assigned (C).

A. The Proposal's objectives and the ways to achieve them

The Proposal postulates that there is a need for new rules regulating consumer contract law and that these rules are better being uniformed throughout Europe. The Commission's arguments justifying both standpoints lie on the same basis, which is mainly economic: the completion of the internal market .

First of all, the Commission notes that the current practice of regulating consumer law through minimal harmonisation directives has led to a fragmented regulatory framework310. All further drawbacks highlighted are said to steam from this observation. Firstly, the different rules currently prevailing all over Europe are said to lead to high transaction costs for business trading cross-border. Thus, these so-called compliance costs often deter businesses, especially small and medium-sized companies311, willing to provide goods and services to other countries in Europe from so doing. As an example, responses from the green paper showed that 55% of retailers considered the extra costs of complying with the different rules in Europe as very important or fairly important312. Secondly, even if business actors actually decide to provide goods and services to other countries, the additional compliance costs will be included in the prices. As a consequence, consumers are directly affected since they have either a large choice of goods and services but at high prices or either a restricted access to them. Thirdly, the fragmented regulatory framework is also decried for undermining consumers' confidence and to prevent them from shopping beyond the frontiers of their own country. Indeed, they do not know on which rules they can rely on and the level of protection they enjoy in a foreign country. Thus, they

think that any problem occurring with goods acquired cross-border will be very difficult to solve. Conversely, if they felt secure in the transaction, for instance if they knew they are well-protected even in another Member States, they would be more disposed to contract313.

For the Commission, these drawbacks stand as obstacles in the development of the internal market and it is its duty to have them raised. Indeed, it has to be recalled that the establishment and the development of the internal market is, since the beginning, one of the European Union's goal314. Thus, the positive consequences said to be brought by a common set of rules applicable everywhere in Europe regardless of the country concerned justify the Commission's intervention.

Put it in a positive manner, the Proposal's objectives are to:

«Contribute to the better functioning of the business-to-consumer internal market by enhancing consumer confidence in the internal market and reducing business reluctance to trade cross-border»315.

These objectives can be achieved by «decreasing the fragmentation, tightening up the regulatory framework and providing consumers with a high common level of consumer protection»316. As the practice of minimum harmonisation is unable to put

317

an end to the fragmentation of the regulatory framework , the Commission is of the opinion that a full harmonisation Directive is the best way to complete the aim assigned to the Proposal.

It is worth noting that the Proposal is based on article 114 of the Treaty on the Functioning of the European Union318 (previously article 95 of the EC Treaty). This legal basis specifically states that the Commission's proposals, in particular as regard consumer protection, take as a base high level of protection »319

must « a . However,

article 169(2) of the Treaty (previously article 153(2) of the EC Treaty) on the Functioning of the European Union provides that measures taken on the basis of article 114 are adopted for «the completion of the internal market». Conversely, in accordance with articles 169(2)(b) and 169(3), articles 169(4) states that the Commission's proposals aiming at certain policy goals, including consumer protection, cannot prevent Member States from «maintaining or introducing more stringent protective measure». As the Proposal provides for full harmonisation, its primary goal is thus the development of the internal market320. This might explain why the Proposal's content is, as we will see, not so much consumer-friendly321.

B. The Proposal's ability to reach its objectives

The analysis of both its content (1) and its form, which is to say the fact that it provides for a full harmonisation directive (2), shows that the Proposal as it is currently designed is not the best way to reach the aims assigned to it.

1. The Proposal's content

The provisions regarding consumer sales and guarantees laid down in the Proposal are mainly based on what was already stated in the Directive of 1999322. As a matter of fact, while transposing it, a lot of Member States provided for more protection than what was process «gold -plating» 323

stated in this Directive, a called . However, they

cannot do the same with the regime the Proposal sets forth. Indeed, it provides for a full harmonisation directive which means that Member States cannot maintain or introduce provisions different from the one the Proposal 324

written down in . To put it

concretely, this means that all provisions exceeding those laid down in the Directive of 1999 will have to be repealed by the Member States325 . Thus, the content of the provisions and the exact protection they grant to consumers are ought to be carefully analysed.

This Proposal is highly criticised since except on a few matters, there is no real improvement of the protection already existing. Even worst, with the full harmonisation provided for by the Proposal, some rules which were satisfying as setting a minimum level of protection for consumers appear to be too low and thus questionable as they have to be transposed exactly as they are stand in the Proposal. More precisely, it will be seen that their implementation in some Member States, as France and the UK for instance, would lead to a decrease in the protection already given to consumers326. Moreover, this part will also show that many provisions stated in the Proposal are far from being clear and need to be interpreted by judges. Likewise, the rules stated do not give any bargaining power to consumers in case of disagreement with sellers. Finally and more generally, it will be

demonstrated that the Proposal's rules are not designed to reach the objectives assigned to it.

All these consequences are to be avoided since consumers regard as natural any improvement of the law protecting them whereas any regression is seen as unjustifiable327. As such, the regression resulting from the proposal in some Member States will undermine the European Union's legitimacy. This potential outcome is not to be underestimated providing that one of the final aim of the harmonisation of European law is the building of the Europe of the citizens328.

However, it is worth noting that V. Reding, in her first speech as the new
Commissioner responsible for the Proposal, declared that «it is clear that the proposal

»329

as it is today does not offer the right level of protection on all issues . She then added that she was going to work with the Parliament and Member States in order to increase the level of consumer protection stated in the Proposal. Thus, when assessing the Proposal, it must be kept in mind that amendments are going to be added.

The Proposal provides that seller must deliver goods which are conforming330.

331

Conformity of the good is to be assessed at the time of the delivery . Thus, the assessment of the Proposal will be made by first analysing the rules as regard delivery of the good (a) and by having a closer look to the regime set as regard nonconformity (b).

a. The delivery of the good

Provisions regarding the delivery of the good are in practice important for consumers, especially when they buy goods online. As this issue was not dealt with under the Directive, it is a great step forward that it is tackled by the Proposal. Its article 22 states that the material possession of the good must be transferred within 30 days

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from the date of the conclusion of the contract . This is a default rule and parties are allowed to agree for a longer or a shorter period. If the seller fails to make a delivery in the agreed period, the consumer is entitled to a refund of any sum he has paid within seven days after the date when the delivery was supposed to take place333.

of a long 334

First all, be

it can noted that, rule,

as default period

the stated is rather .

Indeed, in most cases, when the good is purchased directly at the store for instance, the delivery would be expected to take place immediately. Moreover, even though the delivery has to be made after the conclusion of the contract, 30 days remain a long period. Currently, most of the Member States provides that the delivery must take place within a reasonable period which is less than 30 days, and some of them

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even states that the delivery has to take place immediately . As long as parties can freely provide for another period if necessary, it seems difficultly understandable why the default rule is so long. It thus seems to move back consumers' rights as they stand now in most Member States.

In addition, no guidance is given as regard the notion of late delivery and non-
delivery. To put it concretely, when is a consumer confronted to a late delivery and/or

a non-delivery? These are classic questions which courts have to solve 336 and for which answers might vary. It is thus regrettable that the Proposal does not precise them further. As it provides for full harmonisation, this task should be fully undertaken and should not leave such important issue to Memb er States an. This is not in line with the Proposal's aim to put an end to the fragmentation of the rules amongst Member States.

b. The regime for non-conforming good

The assessment of the Proposal will be made by first analysing all issues pertaining to non-conformity of a good (i), the time limits allowed to lodge a claim (ii) and the remedies available for consumers (iii).

i. The non conformity

Provisions regarding non-conformity are at the core of the balance which is to be found between the consumers and the sellers' interests. Indeed, non-conformity is the reason why a consumer will complain to the seller and, consequently, is the very object of the disagreement or even the litigation arising between them. More than the notion of non conformity itself (a), what is important is the presumption attached to it ((3) and the duty to notify any non-conformity (y).

á. The notion of non-conformity

Article 24(2) of the Proposal specifies what is exactly meant by non-conformity and replicates almost verbatim the provisions already laid down in the Directive of 1999. Thus, we will not develop this point.

However, the Proposal brings a slight change in its article 24(3) which , as tiny as it seems at first sight, can have in practice significant consequences. The Proposal specifies that there is no lack of conformity if the consumer, when contracting, was aware or «should reasonably have been aware» of the non -conformity of the good purchased337. As a comparison the existing Directive provided that there is no lack of

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conformity if the consumer «c ould not reasonably be unaware » of it . Where the Directive states a negative rule (consumers «could not»), the Proposal provides for a positive rule (the consumer «was» and «should»). Thus, one can wonders whether the modification brought by the Proposal could be interpreted as putting on consumers an onus to investigate the good before purchasing it339.

If such interpretation was to be true, the Proposal would go too far since it would impose on consumers an unfair and too heavy duty. It is not denied that consumers claiming for a remedy because of an obvious defect they could not be unaware of are likely to be acting in bad faith and should not be granted such remedy. However, consumers are ought to think that any good looking normal at first sight is actually normal. This is especially true as regard complicated goods such as laptop as well as for pre -packaged good for which an examination is in fact impossible340. Even the Vienna Sales Convention itself, which applies to international sales contracts

occurring between professionals, does not put such a duty on the buyer's shoulders341.

â. The presumption of non-conformity

When a good does not work properly or does not work at all, it can be difficult to prove whether this problem comes from a defect affecting the good or whether the good has in fact been badly used or damaged after it has been purchased. This is especially true concerning complex goods, as cameras for instance. Thus, the outcome of the case often depends upon the party on which lies the burden of proof. Indeed, it is as hard for a consumer to prove that the good purchased is actually defective than for a seller to prove that it is the consumer who is responsible for the problems which occurred342.

That why s principle the six presumption 343

is the Proposal the

replicate of months

already laid down in the of 1999 344

Directive . It however changes the moment when

the period begins (the passing of risk in the Proposal instead of the delivery in the Directive of 1999). Indeed, if during the first sixth months after the passing of risk a problem occurs, the defect is presumed to have already existed when the risk passed. Conversely, if the defect appears after the first sixth months, then it is the consumer who has to prove that the problem occurred because the good is defective. It shall here be recalled that in fact, risks pass usually at the delivery of the good345. This rule seems to be reasonable and to strike an equitable balance between the consumers and the sellers' interests. However, it can be regretted that such

presumption is not further extended. Indeed, even though this opinion is not agreed by everyone346, I think that the presumption should apply after the good has been replaced or repaired. Indeed, in both cases, the good was not conforming and a remedy was granted to the consumer. However, the new good or the good replaced is ought to be as good as a new one and I do not see why the presumption described above should not apply again in these cases.

ã. The duty to notify

Article 28 of the Proposal provides that consumers, to be able to lodge a claim for lack of conformity, must notify any such non-conformity within two months after the moment they discovered it347. Such rule was already provided for under the Directive of 1999 but, after many debates, was made optional, and many countries did not implement it348.

This rule seems to me to be unfair and hardly justifiable as regard the overall balance of the Proposal. Indeed, consumers already have to prove that the good they have purchased does not conformed and, except during the first sixth months, that this non-conformity already existed when they acquired it. Thus, I do not see the rationale of any rule aiming at increasing the burden of the proof consumers have to provide. Furthermore I think that a two months notice is anyway too short.

Moreover, providing that proving the existence of any non-conformity will get harder
as the time passes, it is in the consumers' interest to notify such lack of conformity as
soon as possible349. Thus, if they do not actually notify such non-conformity within

two months, one can reasonably assumes that something impeached them from so doing. As an example, if the good was purchased far away from where is living the consumer, in a nother Member State for instance, all information necessary to give any notice to the seller, at first place his details, can be hard to find. As a result, such provision actually hampers consumers' cross-border acquisitions since it will be harder, in practice, to obtain a remedy for goods purchased in another country. Providing that the Proposal seeks to facilitate cross-border transactions, this rule seems to be even less understandable.

As a matter of fact, this rule already existed in the current Directive and was already implemented by some Member States. However, an analysis of the overall context in these countries shows that this duty to notify was implemented as a counterbalance to other rights already granted to consumers. In the Netherlands for instance, such duty exists but the consumers have the possibility to claim for remedies throughout the economic life span of the product and can freely choose the remedies they prefer. Accordingly, stating a duty to notify was seen as counterbalancing such strong power given to consumers. Providing that no such power is given to consumers in the Proposal, the imposition of a duty to notify is highly questionable.

Finally, it must be noted that the Proposal's provisions are rather lapidary and do not tackle the consequences of a failure of the duty to notify. Does the consumer lose all remedies? That would be very harsh. In any case, here again, the Proposal's rule is not clear enough and, if it was to be adopted as it currently stands, would lead to a decrease in the protection granted to consumers in many Member States.

ii. The duration of the guarantee: the two years cut-off period

The provisions as regard the duration of the guarantee are at the heart of any set of rules regulating consumer sales since they provide for the length of time during which consumers are entitled to claim for a remedy in case of non-conformity. While consumers call for a long period, businesses argue that they are in need for some legal certainty and cannot carry the risk of hav ing to comply with consumers' complain for a too long period. As in the current Directive350, the Proposal provides that consumers have two years from the delivery of the good to lodge a claim for non-conformity351.

The Proposal provides for a full harmonisation directive. As a result, the two years period originally stated as a minimum guarantee in the Directive of 1999 is now turned into a maximum period from which Member States cannot derogate. Such consequence is highly questionable and many authors see this short period as a «large step back»352 in consumers' protection and argue for its deletion or, at least, its extension.

In addition, it must be noted that this two years period starts right at the delivery of the good and not at the discovery of the non-conformity. This means that after this two years period, even though consumers can prove that the good they acquired does not conform and that such non-conformity already existed at the moment of the delivery, they will not be entitled to claim for remedies. Thus, this period is too short, especially for goods which are expected to last for much longer than two years. Consequently, if consumers want to enjoy a longer protection when buying these

kind of items, their only choice is to purchase a commercial guarantee which is often costly. Moreover, such short period does not work as an incentive for producers to design goods intended to work for a longer period. Such outcomes can hardly be seen as protecting consumers.

Moreover, a lot of Member States allowed for a longer period. As an example, the
legal guarantee lasts for up to five years in Norway and Scotland, six years in
England, Wales and Northern Ireland and throughout the economic lifespan of the

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good in the Netherlands . In these Member states, the implementation of a two years period would have odd effects. Indeed, in the UK and in the Netherlands for instance, this longer period concerns all contract of sales and is therefore applicable for both consumers and non-consumers. Thus, if the Proposal's provisions were to be applied as they stand now in these countries, non-consumers would enjoy a greater protection than consumers. Thus, the latter would be likely to pretend they are not consumers or were not acting as consumers when purchasing the nonconforming good in order to beneficiate from the better rule354.

Technically speaking, there are two ways to improve the existing rule: either provides for a longer period, such as the six years period in England, Wales and Northern Ireland for instance, or to states that this two years period begins at the discovery of the non -conformity of the good, such as in France as regard the two years period for latent defect for instance.

Furthermore, it is to be noted that there is no suspension of the two years cut-off
period when the goods are under repair. Conversely, in case of reparation, a new

period of two years applies from the moment when the consumer is in possession of the replaced good355. Such difference is rather surprising providing that a consumer who had his good repaired is as much entitled to expect for a conforming good for a period of two years as a consumer who had his good replaced. Moreover, since sellers are the one who have the choice between repair and replacement356, one can assume that, in addition with the fact that it is generally less expensive, they will prefer to carry out repair to avoid the renewal of the two years period. Finally, as such, this provision will not encourage sellers to be diligent in the reparation of the goods357.

iii. The remedies

The Proposal provides that consumers are entitled to repair, replacement, price reduction and rescission (a) as well as for damages (13).

a. The hierarchy in the remedial scheme: repair or replacement first, price
reduction or rescission second

The hierarchy was already provided by the Directive of 1999 which functioning has already been detailed (A. The Directive of 1999 on certain aspect of the sale of goods and associated guarantees). Thus, this part only aims at analysing the changes made to it and at explaining the consequences that its implementation in all Member States would have.

When transposing the Directive of 1999, some Member States have chosen to implement the hierarchy, such as Germany and France for instance, whereas some other States, UK, chose to choice consumers 358

as

such the leave the to . In the UK,

all buyers are entitled to reject the good at a first stage. However, as the Proposal provides for a full harmonisation directive, the UK would not be allowed to leave such remedy to consumers. Thus, where professional buyers would be able to terminate the contract and reject the good if it appears to be non -conforming, rules would be less consumer-friendly for consumers who would, as a first tier of remedy, be only able to ask for repair or replacement. This absurd situation shows that as it stands now, Member States are likely to be unwilling to accept the Proposal.

Moreover, under the Proposal, consumers' possibility to choose between the remedies is even more restricted than under the Directive. Indeed, the latter let the primary choice between all remedies to the consumer:

«In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate»359.

Conversely, the Proposal states:

«The trader shall remedy the lack of conformity by either repair or replacement according to his choice»360.

Thus, under the Proposal, consumers cannot even choose the remedy they think the most appropriate to solve the lack of conformity they suffered. Such restriction is questionable as consumers are the prejudiced party and should therefore be able to choose. If it is true that sellers are not necessarily at fault when delivering a nonconforming good since they can be unaware of such non -conformity, consumers are definitely not at fault themselves. Thus, sellers should be the party who carries the risk and should not be given the power to select the remedy. Moreover, as they are primarily concerned with financial considerations, they are likely to choose the less costly solution which will often be the repair of the good, even though the good should in fact be replaced. Furthermore, consumers are left with no bargaining power since they have to accept the remedy chosen by the seller. In the consumers' field, such bargaining power is of great significance since in practice, it is the first defense consumers can oppose to sellers. The second defense is the judge but, as already highlighted, consumers are often unlikely to go to court, especially when the good at stake is not very expensive. Thus, the Proposal's provision leads to an unwelcome decrease in consumers' protection361.

In addition, in practice, contrarily to the result sought, this Proposal's rule is likely to prevent consumers from purchasing goods abroad. Indeed, as they cannot ask for the termination of the contract, they will have to accept a repair or the replacement of the good. However, if the item has been bough abroad, that means consumers will have to send it back to the seller and then wait for it to be repaired or replace. Such scheme involves a heavy process which lies on consumers who will thus prefer to buy goods close to the place where they are living as it will then be easier to comply with the Proposal's provisions.

Moreover, when it comes to price reduction and termination of the contract, th e rules appear to be unclear and ambiguous. As an example, no guidance is provided regarding the calculation of the price reduction. Yet, as sellers are in a more powerful position, they can impose their way of calculation which can then be at the consumers' disadvantage. Thus, for the sake of consumers' protection, more details on this point would have been welcomed.

Likewise, no information is given as to the way the contract is to be terminated and the consequences attached to such termination. Thus, these issues are left to national laws, which is rather surprising considering the fact that the termination of the contract is likely to be problematic and considering the aim of the Proposal which is to harmonise the law on field 362

his

t . As a matter of fact, Member States provide for

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many different manners to terminate the contract . As an example, in France, such termination has to be commanded by a judge (latent defect and «obligation de délivrance conforme) or can be freely used (lack of conformity provided for by the Ordinance of 2005) whereas in the UK, consumers can freely choose it. Moreover, a lot of questions are left unanswered such as how the parties have to undo the performances they have already made. Indeed, providing that the rescission of the contract brings it to an end with retroactive effects, questions such as whether consumers have to pay for the utilisation of the good and whether the decrease in the good's value and its fair wear and tear have to be supported by consumers are left open.

Furthermore, the reasons entitling consumers to claim for price reduction and rescission of the contract are not enough detailed. The Proposal states that consumers can claim for the second tier of remedy if:

Ò(a) The trader has implicitly or explicitly refused to remedy the lack of conformity

(b) the trader has failed to remedy the lack of conformity within a reasonable time

(c) the trader has tried to remedy the lack of conformity, causing significant inconvenience to the consumer

(d) the same defect has reappeared more than once within a short period of timeÓ364.

If the Proposal gives helpful indication by saying that the assessment of the
«reasonable timeÓ and the Òsignificant inconvenienceÓ has to take into account the

nature of the good and the purpose for which the consumer has purchased it, in

practice, these notions are likely to be debated at court and will have to be explained
further by judges. Moreover, no further explanation is given as regard the
reappearance of the defect within a short period. This new limb is an improvement

since it was not provided by the existing Directive. However, the notion of Ò same defectÓ is unclear since we do not know whether it must affect the same good or the replace or repaired good. Here again, this notion will have to be explained by judges. Such outcome is questionable as rules applicable to consumers should be clear

enough to be understood and applied by both parties to the contract and should be usable by consumers on their own.

Finally, the remedial scheme does not take into account some situations where consumers have lost all confidence in the sellers' and their goods. In such cases, consumers will only be willing to bring the contract to an end. As an example, if a car's brakes appear to be defective, the consumer might not have trust in this car anymore and will not want to have it repaired, replaced or even to have its price reduced. These remedies would simply be inadequate as the consumer will just be willing to terminate the contract and give back the car. However, following the Proposal's rules, the consumer would be forced to accept a repair or a replacement. Thus, generally speaking, it can be said that the Proposal's rules do not give enough flexibility as regard the remedies available for consumers and should thus be amended.

â. Damages

The existing Directive does not provide for any rules as regard damages. Thus, this issue was governed by Member States' themselves which all have different ways to tackle it. As an example the scope of damages which can be recovered under French law is wider than under English law. Surprisingly, the Proposal barely deals with this matter and only states that «consumer may claim damages for any loss not remediedÓ by the repair, replacement, price reduction or rescission, as the case may be. This can be the case if a car's engine explodes and blows away a garage, for instance. Under the Proposal, in such case, the consumer would be able to claim for damages which would be awarded in accordance to his national rules. As a result, differences between Member States in the way damages are to be granted and as

regard the scope of damages which can be recovered, such as damages covering disappointment or distress for instance, will remain365. This is questionable since the Proposal's aim is to harmonise consumer sales.

2. The Proposal's method - Full harmonisation

Full harmonisation is a rather new approach which was announced in the 2002
Communication on the Consumer policy strategy 2002 -2006 of 7 May 2007366. It was

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then a method used in four Directives dealing with consumer protection . As the Proposal is also following this approach, a lot is at stake for Member States which will lose their sovereignty over some matters. As such, Òfull harmonisation will probably be the most Proposal »368

controversial aspect of the . If this way of acting is the best

one in order to achieve the objectives stated by the Commission, then little can be said to criticise it. However, from this perspective, this approach seems in fact undesirable and has even been described as a «toxic packageÓ369. Indeed, the meaning of full harmonisation is rather obscure (a) and a directive which provides for full harmonisation does not seem to be the best way to achieve the Proposal's objective (b). In addition, generally speaking, it is doubtful that any unified solution is desirable (c).

a. The uncertain extent of the full harmonisation

Article 4 of the Proposal states:

«Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in the Directive, including more or less stringent provisions to ensure a different level of consumer protection».

Likewise, two decisions delivered by the ECJ on 23 April 2009 make clear that in case of a full harmonisation Directive, Member States cannot adopt rules which are more protective of consumers than those laid down in the Directive. These decisions are concerned with the Directive on unfair commercial practices370 and state:

«(...) the Directive fully harmonises those rules at the Community level. Accordingly (...), Member States may not adopt stricter rules than those provided for in the Directive, even in order to achieve a higher level of consumer protection» 371.

These decisions are confirmed by another decision delivered by the ECJ on 14 January 2010 372.

The impossibility for Member States to keep their own existing rules protecting consumers beyond the standards laid down at the EU level flows clearly from both article 4 of the Proposal and the words of the ECJ itself. However, the extent to which Member States are prevented from so doing remains unclear. In other words, the ascertainment of what falls within the Directive's scope and what does not is not self- evident. As V. Reding acknowledges herself, this is due to the fact that the relationship between cons umer contract law and general contract law is not clear373.

To put it concretely, if the Proposal was to be adopted, Member States would have to transpose it exactly as it stands and could not maintain or implement different rules374. However, this is only true in the fields which are regulated by the Proposal. Conversely, in other areas, nothing precludes Member States from providing for different rules that those laid down in the Directive. As an example, while Member States could not give up the hierarchy of remedies for consumers, they would not have to provide for it for all contracts of sales since the Proposal is only concerned with consumer protection. Beyond this apparent simplicity, it can be difficult to determine which fields are concerned with the Proposal and which fields are not. To stick to our example, if there were a hierarchy of remedies applicable for consumers whereas other buyers would remain free to choose the remedy they want, would consumer be entitled to rely on the general law of sale and claim for the remedy they want? If the answer is yes, then the Proposal's objective to bring to an end the existing fragmented regulatory framework in Europe is clearly illusory. Conversely, if the answer is no, which seems to be the right way to interpret the notion of full harmonisation375, absurdly, consumers would be likely to pretend they were acting for a professional purpose in order to avoid being qualified as consumer and to beneficiate from more lenient rules. Indeed, we have already seen that as they are currently shaped, the French and the English rules protecting consumers are often provided for all buyers376. Thus, providing that the Proposal leads to a regression in consumers' protection, if France and the UK were only to implement the Proposal in the field of consumer law, professional buyers would be more protected than lay people buying as consumers. Such outcome is described as a «legal mess»377 and is highly criticised by authors.

To avoid this « legal mess », Member States can rightly decide to extend the scope of
the Directive while transposing it. Such process is referred to as «spontaneous
harmonisation» of law and permits to preserve a certain unity and coherence between

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general contract law and consumer contract law . Thus, as an example, Member States could decide that the two years time limit to lodge a claim applicable to consumers is in fact applicable to all buyers. However, this shows that the Proposal's influence in national law might be far greater than assumed at first sight and that the frontiers between the Proposal and national law are blurred and vague379.

Moreover, as a matter of fact, the only thing certain about full harmonisation as stated in the Proposal is the uncertainty it provides for Member States as regard its influence on other fields it does not specifically govern. Indeed, the Proposal will need the European Court of Justice (ECJ)'s help to clarify its scope. However, in the mean time, no definitive answers will be available and this will introduce legal uncertainty in all Member States380.

In addition, the Proposal threatens wide areas of national law, both in France and in the UK. Indeed, some main features of consumers' protection in France and in the UK are in the questioning room. As an example, as it provides for a right to terminate the contract as a first tiers of remedy, the English right of rejection is incompatible with the Proposal which provides for a hierarchy in the remedies. Likewise, the French latent defect provides that if the good appears to be defective, buyers have two years to lodge a claim from the moment they discovered the defect. This seems to be incompatible with the Proposal which provides for a period of two years from the passing of risk. These are only examples and generally speaking, many rules

deeply settled in national legal systems might have to be removed in accordance with the Proposal.

b. Is a full harmonisation Directive the right way to reach the Proposal's

objectives?

Full harmonisation is the way chosen by the Proposal to provide for a high level of consumer protection as well as to fulfill its other objectives. However, we have already seen that full harmonisation does not go without drawbacks and that its coverage area is unclear. These shortcomings are ought to be further detailed in order to assess the Proposal's ability to reach the aim it targets.

The Proposal points out the fragmented regulatory framework currently prevailing in
Europe as being very costly for businesses willing to sell goods or provide services in

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other member States and, thus, as hampering cross -border transactions . However, no empirical evidences are given by the commission to support this allegation and these costs have never calculated 382

been . Even more, as M. Loos argue, whether a

common set of rules will increase cross-border trade and will decrease prices for consumers is far from being certain383. In fact, a lot of different reasons are said to prevent companies from doing business outside the country where they are implanted, such as commercial practices, languages, customs, lack of knowledge

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about people needs and about the right ways to meet the demand... None of these concerns would be answered by a full harmonisation Directive. In addition, if law is a factor of importance, tax law or procedural law are more likely to be problematic than consumer law385. Actually, the extent to which the fragmented regulatory framework

in Europe as regard consumer law actually impedes cross-border business remains unknown386.

The Proposal also justifies full harmonisation by saying that the instauration of a common set of rules will strengthen consumer confidence and is thus a way to allow them to fully enjoy the internal market. However, here again, the Commission does not detail further this opinion and does not give any evidence showing that consumers' confidence would be reinforced by the implementation of a full harmonisation directive387. Albeit there is a lack of studies on this matter, I do not believe that legal considerations play an important role in consumers' decision to shop abroad or not.

In practice, one of the most common ways for consumers to shop in another Member

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State is the internet. In this case, consumers are often attracted by low pricesor by the fact that some items are only available online. However, I doubt that they actually wonder which law will be applicable to the contract they are going to conclude. It is even more doubtful that legal matters can prevent them from buying on the internet. In fact, they probably do not particularly care of the exact location of the seller as long as it does not increase the price they will pay. Actually, it is interesting to notice that even in their own country, consumers are generally more reluctant to shop when they are far away from where they live because they know that if something goes wrong, it will be harder to solve the problem389. This disinclination is not due to the legal framework but to obvious geographical considerations390. Thus, as long as consumers are ready to shop online, they agree to ta ke the risk that if a problem arises, it will be more difficult to solve. Hence, what is of significance is not full

»391

harmonisation since it is thus a «solution to an irrelevant or non existent problem . Instead, what really matters is the Proposal's ability to provide consumers with a way to solve their problem simply and, if possible, without any judge's help. A common set of rules applicable similarly everywhere in Europe would assist consumers in the understanding of their right after a problem occurred but would probably not work

as

an incentive to make them purchase a good in a foreign country.

Moreover, generally speaking, it must not be forgotten that consumers shop, first of all, in their own country. Providing that the proposal will lead, in some Member States, to a decrease in the level of protection consumers are currently enjoying, I do not see how this will strengthen their confidence in the internal market. Instead, such consequence is more likely to undermine consumers' confidence in the European institutions. Full harmonisation is therefore likely to have more drawbacks than advantages. Thus, a deeper analysis of the potential consequences of the Proposal should be undertaken before going forward.

Furthermore, it should be kept in mind that even if the Proposal's advantages exceed

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its shortcomings, full harmonisation is costly and, thus, might not be desirable . These costs are, in particular, the price of the implementation and interpretation of a new body of law which is, in a way, alien to the national legal system of the country trying to adapt it or, more likely, to adapt to it393. In addition, the existing directive has just been adapted by member States which just get used to it. Thus, providing for changes might not be desirable either for consumers and businesses for which legal certainty is an important issue.

Finally, whether a full harmonisation Directive is the best way to achieve
harmonisation remains an open question. More precisely, one can wonder why the

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Commission did not cho ose to act through a regulation instead of a Directive . Indeed, even though member States cannot derogate from the rules laid down in a in the Proposal, they still need to transpose them. As a result, Member States will still have different national laws using different languages and concepts which might be interpreted differently. Therefore, companies willing to trade in other Member States will still need to identify the right law of transposition and to understand how it works alongside the given law 395

countr y's national . Moreover, it must not be forgotten that

full harmonisation does not prevent consumers from relying on other legal basis to solve their problem. As an example, In France, consumers would still be entitled to rely on the general law of contract and, for instance, on the error on a substantive quality of the good, to ask the termination of the contract which provided them with a good which was not at all the one they were willing to acquire. Likewise, as we have already highlighted, claims concerning the allocation of damages will be governed by the national law of each Member States. Thus, the understanding of the system, even harmonised at the European level, provided by these countries entails a good understanding of their overall legal system. This process is neither self-evident nor cost-free. Conversely, is a unified solution is to be taken, for the sake of clarity a regulation would have made sense since it would have been immediately and similarly applicable to all Member States396.

c. Is a unified solution the ideal solution?

More than merely aiming at the implementation of a particular rule, the Proposal targets in fact a policy goal. Thus, in particular in the field of consumer protection, I am of the opinion that a unified solution is not desirable.

The aim of the Proposal is to protect consumers as efficiently as possible while taking into account reasonable interests of businesses. As already highlighted, such process involves subtlety as it is necessary to strike a fair balance between divergent interests. However, all Member States have a different conception of what is a faire balance, depending on the value given to the concept of freedom of contract for instance397. Thus, as an example, the Czech Ministry on Trade and Industry made clear that it regards consumer protection as an aim as long as it does not «restrict the economic activity of vendors»398. Conversely, we have seen that the UK has for instance a more generous conception of what is a fair balance. Moreover, Member States also have different priorities and preferences and are thus unlikely to strike the balance similarly399. Hence, there is no unique answer. Even more, there should not be any unique answer. Indeed, jurisdictions providing for different rules can learn from each other400. This is especially true since commercial practices and, thus, ways to protect consumers continuously change. Therefore, the best scheme to protect consumers is not yet fully found and is in fact varying. As a consequence, I am of the opinion that leaving alongside different legal systems providing for different answers is the best way to follow commercial practices and to protect efficiently consumers. Put it concretely, I believe that it is better to state only a minimum threshold of protection than to provide for uniformed and static rules.

In addition, if unified rules are laid down, they should be as good as possible and, even more, «future proof»401 . Indeed, as Member States will not be allowed to modify them and as any amendment would have to be undertaken at the European level, any flow affecting the rules could only be corrected after a lengthy and heavy process402. In the mean time, the flaw would remain and would undermine consumers' confidence. A text is in fact «future proof» if two conditions are met: first, if the provisions laid down are good and there is no legitimate claims for any amendment and, second, if the text is flexible enough to adapt to upcoming and unknown economic practices403. As a matter of fact, the Proposal is fairly criticised and flexibility is a quality inherently alien to a process aiming at providing for uniformed rules.

Furthermore, as said, the striking of the balance and the conception of what is a fair balance between consumers and businesses' interests is different depending on the legal system, culture and history of any country. Thus, if any law can be «ideal», what would be ideal in a country would most probably not be a good rule in another country. That is why the Proposal leads to regression in some countries while it leads to an improvement of consumers' protection in other Member States404. To sum up, a unified solution which, per se, lacks flexibility and is mechanical in its application, is arguably a bad solution for consumers.

C. Alternative solutions

Now that we have demonstrated that, as it currently stands, it is doubtful that the Proposal will reach the aims targeted by the Commission and is thus, as it currently stands, undesirable for consumers, it is interesting to have a look at other solutions which could better achieve these objectives. This approach raises the question of what is the best level law 405

to regulate consumer . As a mater of fact, a single level

regulation might not be the best solution. Thus, three different ways can be followed, which all involve regulation on a multilevel basis: full harmonisation on selective matters only (1), minimum harmonisation, but at a high level (2) or the use of the «blue button» (3). These suggestions will be assessed through their ability to complete the aims assigned to the Proposal.

1. Full targeted harmonisation

As we have pointed out, the main criticisms targeting the Proposal concern the fact that it provides for a full harmonisation Directive. Indeed, as such, the rules laid down become mandatory for Member States which cannot provide for a better protection for consumers. However, if the Proposal was providing for full harmonisation only on specific points which would be those, in the Commission's view, which really need to be unified throughout Europe, the Proposal would not faced so much opposition and would be more likely to be accepted by Member States406. This solution is even referred to as Òthe magical words»407 and is supported by many authors, including those of the EC Consumer Law C ompendium who overtook an in-depth analysis of

some European Directive's implementation in Europe, including the Directive of 1999 408. In addition, it is worth noting that V. Reding declared that she «will consider the option of more targeted harmonisation where it is practicalÓ409.

The points to be fully harmonised would have to be clarified but, following the Commission's reasoning, there would likely be those which create barriers to trade. As an example, it could be thought that it is important to unify the period during which consumers can lodge a claim in order to provide legal certainty in the business field . Conversely, providing for a strict hierarchy in the remedies consumers are entitled to claim does not seem to be a major obstacle standing in the way of companies willing to provide goods or services in other Member States.

Thus, such solution would have the advantage to shape the Proposal in a way which would enable it to reach its objectives. Indeed, as major barriers to trade would be removed, or at least lowered, the level of consumer protection would not, generally speaking, decrease. Enjoying both a satisfying level of protection and some common rules they know and can rely on, consumers would thus gain confidence in the internal market. In addition, this solution would permit to leave to Member States their sovereignty over some matters whose roots are deeply implanted in their history, culture and legal system.

However, arguably, such solution would not provide for any simplification as it would create a system which would have a complex relationship with national rules depending on whether a given rule is optional or provides for full harmonisation. Moreover, the regulatory framework would remain fragmented and would be ruled at

the national level since Member States could keep some of their provisions and would anyway have to transpose the Directive themselves. As such, it would not bring clarity to consumer and business and, though being better than a Directive providing for full harmonisation of its whole content, is not desirable.

2. A high level of minimum harmonisation

This solution would transform the current Proposal which stands for full harmonisation to a new Proposal which, as the previous one, would only provide for minimum harmonisation. However, the aim would be to grant consumer with a level of protection far higher than in the current Directive.

The main advantage of such solution is to allow Member States to keep their sovereignty over their law which sometimes goes at the heart of their legal system. As an example, France could keep its systems of latent defect and «garantie de conformité» which are strongly linked with the Civil Code and its history. Likewise, the UK could keep its right of rejection which has been shaped by cases law and lies at the core of the law ruling the sale of good. Moreover, the pro tection consumers could rely on would be, generally speaking, higher. As such, consumers' confidence would increase.

However, such solution would not put an end to the fragmented regulatory framework prevailing in Europe and thus, would not lower the costs necessary to sell goods and services in other Member States. As such, this solution is unlikely to attract the Commission's approval.

3. The so-called «blue-button»

This «blue button» is also called the 28th law as it would provide for a new set of rules regulating consumers at the European level410. This new set of rules would merely offer consumers another ground on which they could rely and this new basis would exist alongside the existing provisions of Member States and would not threaten them. As an example, this new regime could be set through a regulation and, as such, would provide for exactly the same protection everywhere in Europe. Thus, wherever they would be in the European Union, consumers would always enjoy de facto a minimum level of protection as they could always rely on this new regime.

This solution would protect Member StatesÕ existing rules. However, the main weakness of this solution is that it does not provide for any simplification in the regulatory framework in Europe411. Even worst, it would probably further complicate some matters and would not raise the so-called compliance costs standing in the way of businesses willing to trade in other Member States.

Nonetheless, I believe that this solution is the best one. Indeed, as we have demonstrated, bringing to an end the fragmented regulatory framework in Europe is very difficult, cannot be achieved with a full harmonisation directive and is anyway not desirable. Thus, the «blue button» solution can provide for a high level of protection for consumers similarly applicable throughout Europe. As compared to a minimum and full targeted harmonisation Directive, the law applicable within all Member States would be the same. Thus, this would strengthen consumer's

confidence in the internal market as they would know that wherever they are, there is an efficient law on which they can rely if the contract they are concluding goes wrong. As such, still keeping in mind the Proposal's objective, this would lead to an increasing of cross-border transactions and would thus permit the development of the internal market. Finally, beyond the aims assigned to the Proposal, such solution would also be an important part of a process leading to the creation of a commune culture throughout Europe and, thus, to the creation of a Europe of the citizens412.

Conclusion

We have seen that the French and the UK's regulatory framework applicable to consumers are very different. More precisely, we have highlighted that the French traditional legal system does not provide for an efficient protection of consumers as it is difficultly usable in daily transactions. Thus, the Ordinance of 2005, albeit providing for another set of rule, improves consumers' protection and is thus welcome. Conversely, in the UK, consumers enjoy a great level of protection due mostly to the efficiency of the system whereby consumers are allowed to reject non-conforming goods. The transposition of the Directive of 1999 added to this protection on a few issues but did not shatter the system as a whole.

These differences demonstrate the variety of the existing regulatory framework applicable in Europe. Such fragmentation of the legal framework applicable throughout Europe is criticised.

More precisely, we have seen that the Commission is concerned with the increasing of cross-barriers transactions and the strengthening of consumer confidence. Noting that a minimum harmonisation Directive cannot achieve these goals, the Commission launched a Proposal providing for a full harmonisation Directive. However, this Proposal seems hardly capable of reaching the objectives it targets. Indeed, the fact that it provides for a full harmonisation directive is not enough to increase cross-border transaction and even leads to a decreasing in the level of protection consumers already enjoy both in France and in the UK. Thus, the Proposal must undergo modifications before it is likely to be accepted by Member States. In line with the objectives it has been assigned, the most important change should be its «envelop» as full harmonisation should be given up. Instead, it seems that providing for a new set of rules similarly applicable throughout Europe, a 28th law or at least a full targeted harmonisation would better achieve the objectives of the Commission.

BIBLIOGRAPHY

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B. United Kingdom

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C. France

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_ Loi n° 2008-561 of 17 June 2010

D. Other

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(18 th

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C. France

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,

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_

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_Obligation de délivrance - Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente _L'ordonnance du 17 février 2005 sur la garantie de conformité: aux regrets

er

s'ajoutent les regrets , D. Mainguy, Revue des contrats, 1juillet 2005, n°3, page 947

_The proposed Consumer Rights Directive Ð less haste, more thought?, Ch. Twigg- F les ne r and D. Metcalfe

_The Proposal for a Directive on Consumer Rights: Scope, Relationship with National General Contract Law and Relationship with other Community Legislation, 9 October 2009

_Propos dissidents sur la transposition de la directive du 25 mai 1999 sur certains aspects de la vente et des garanties des biens de consommation, D. Mainguy, La Semaine Juridique Edition Générale, n° 48, 27 Novembre 2002, I, 183 _La proposition de Directive Relative aux Droits des Consommateurs et la Construction d'un Etat Européen des Contrats, C. Castets-Renard

_A Pure Theory of Local Expenditures, C. Tiebout _Quel domaine assigner à la loi de transposition de la Directive Européenne sur la vente, G. Viney, JCP 2002, I, 158

_Quelle transposition pour la directive du 25 mai 1999 sur la garantie dans la vente de biens de consommation, G. Paisant and L. Leveneur, JCP 2002, I, page 135 _Regards Dubitatifs sur l'Effectivité des Remèdes Offerts au Consommateur en Cas de Défaut de Conformité de la Chose Vendue", L. Gaudin, Recueil Dalloz 2008, page 631

_Au retard s'ajoute les regrets, B. Fages, RLDC, 2004/10, page 5 _Remedies for Non-Performance: the Revised German Law of Obligation, Viewed _Against the Background of the Principles of European Contract Law, R. Zimmermann, Edinburgh Law Review, 2002 _Retour sur la transposition de la directive du 25 mai 1999, G. Viney, Dalloz 2002, Chronique page 3162

_Review of the Consumer Acquis: Towards Maximum Harmonization?, V. Mak

_The Right to Reject, G. Dehn and R. Cranston, Journal of Business Law, 1990 _Sale of goods: arrangements for repairs, Practical Law Company, found on this website: www.practicallaw.com

_Sale of Goods - Remedy of Rejection - How Quickly is the Right Lost? S. Hedley, Cambridge Law Journal, 2001

_Sale of Goods and Supply of Services, LexisNexis, Volume 40 _The Sales and Supply of Goods to Consumer Regulations, Ch. Willet, M. Morgan-Taylor and A. Naidoo (Westlaw)

_Specific Performance - A regular Remedy for Consumers? D. R. Harris, Law Quarterly Review, 2003

_Towards a Maximum Harmonzation of Consumer Contract Law, M. Faure _Transposition de la Directive du 25 Mai 1999 : la parole est à la défense, D. Mazeaud, Dalloz 2003, page 6

_Transposition de la Directive du 25 Mai 1999 sur la vente et la garantie des Biens _de Consommation: Quel Code pour le Droit Européen de la Vente?, J. Raynard _Transposition de la Directive de 1999 sur la Garantie des Consommateurs - Article de Foi ou Réalisme Législatif, O. Tournafond, Dalloz 2003, chronique page 427 _Transposition de la Directive sur la vente: ne pas manquer une occasion de progres, P. Jourdain, Recueil Dalloz 2003, page 4 _La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Paisant, Contrats, concurrence, consommation, n° 8, aoüt 2005, étude 8

_The Uneasy Case for Harmonizing Consumer Law, R. Van Den Bergh _Les vices cachés dans la vente ; responsabilités et garanties , P. Langlet, La revue experts, n° 28, Octobre 1995

_What is to be done about Sale of Goods?, M. Bridge, Law Quarterly Review, 2003

VI. Books

_Review of the European Consumer Acquis, M. B. M. Loos (European Law Publishers)

_EC Consumer Law Compendium - The Consumer Acquis and its transposition in the Member States, H. Schulte-Nlke, Ch. Twigg-Flesner and M. Ebers, European Law Publishers

_Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited

_Modernising and Harmonising Consumer Contract law, Howells, Gerainst/Schulze, Reiner

VII. Websites

http://europa.eu/index_en.htm http://www.legifrance.gouv.fr/ www.senat.fr

1 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010

2 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

3 See in particular Green Paper on the Review of the Consumer Acquis, Commission of the European Communities, COM (2006) 744 final and Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3

4 Proposal for a Directive of the European Parliament and of the Council on consumer rights, 8 October 2008, COM(2008) 614/3

5 For an example of an in--depth analysis of the Proposal, see Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos

6 Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises; Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 97/7/EC of 20 May 1997on the protection of consumers in respect of distance contracts; Directive 99/44/EC of 26 May 1999 on certain aspects of the sale of consumer goods and associated guarantees

7 This point is for instance acknowledged by the Department of Trade and Industry Consumer and Competition Policy Directorate in The Sale and Supply of Goods to Consumers Regulations 2002 - A Brief Introduction, page 3

8 See also The Psychology of Consumer Detriment - A Conceptual Review, Prepared for the Office of Fair Trading by P. Lunt, L. Miller, J. Körting, J. Ungemah, January 2006, OFT792

9 See in particular Focus Group Research on Consumer Detriment, Prepared for the Office of Fair Trading by FDS International, S. Link, S. Gibson and W. Ullstein, January 2006, OFT826, page 46

10 See in particular: Focus Group Research on Consumer Detriment, Prepared for the Office of Fair Trading by FDS International, S. Link, S. Gibson and W. Ullstein, January 2006, OFT826; The Sale and Supply of Goods to Consumers Regulations 2002 - A Brief Introduction, Department of Trade and Industry Consumer and Competition Policy Directorate; The Psychology of Consumer Detriment - A Conceptual Review, Prepared for the Office of Fair Trading by P. Lunt, L. Miller, J. Körting, J. Ungemah, January 2006, OFT792

11 See for instance: Focus Group Research on Consumer Detriment, Prepared for the Office of Fair Trading by FDS International, S. Link, S. Gibson and W. Ullstein, January 2006, OFT826; The Sale and Supply of Goods to Consumers Regulations 2002 - A Brief Introduction, Department of Trade and Industry Consumer and Competition Policy Directorate

12 The EC Consumer Sales Directive: A lot still to do, C. Twigg--Flesner, Canterbury Law Review 113, 2001

13 Green Paper on Consumer Goods and After--Sales Services, 15 November 1993, COM(93) 509 final

14 The Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

15 Aperçu de droit comparé sur la transposition de la directive 1999/44/CE sur la garantie dans la vente de biens de consommation, P. Ancel, Revue des contrats, 1er juillet 2005, n° 3, page 881

16 La grande réforme du droit des obligations en Allemagne, M. Schley and CMS Bureau Francis Lefebvre,
Recueil Dalloz 2002, page 1738 ; Remedies for Non--Performance: the Revised German Law of Obligation,

Viewed Against the Background of the Principles of European Contract Law, R. Zimmermann, Edinburgh Law Review, 2002

17 Aperçu de droit comparé sur la transposition de la directive 1999/44/CE sur la garantie dans la vente de biens de consommation, P. Ancel, Revue des contrats, 1er juillet 2005, n° 3, page 881

18 La Communautarisation des sources du droit - De l'harmonisation maximale, J. Rochfeld, Revue des contrats, 1er janvier 2009, n° 1, page 11

19 Davidson Review - Implementation of EU Legislation, Final Report, November 2006, Better Regulation Executive (BRE), page 37

20 Harmonisation of Remedies for Lack of Conformity in Consumer Contracts - A Comparative Law and Economic Analysis on the European Commission's Proposal for A Directive on Consumer Rights, Ch. Svanholm, page 24

21 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3

22 Garantie de Conformité des Meubles Vendus aux Consommateurs -- Garantie Légale de Conformité -- Garantie Commerciale, L. Leveneur, LexisNexis, Fascicule 1060

23 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee; The EC Consumer Sales Directive: A lot still to do, C. Twigg-- F l es ne r, Canterbury Law Review 113, 2001

24 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

25 Les droits de l'acheteur dans la directive du 25 mai 1999 relative à la vente: actualité d'un texte communautaire à la veille de sa transposition, G. Pignarre, Petites affiches, 27 octobre 2004, n° 215, page 5; see also Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

26 Article 8(2) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

27 Article 8 of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

28 See EC Consumer Law Compendium -- The Consumer Acquis and its transposition in the Member States, H. Schulte--Nölke, Ch. Twigg--Flesner and M. Ebers, European Law Publishers

29 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 41

30 Article 2(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

31 Article 2(2) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

32 The EC Consumer Sales Directive: A lot still to do, C. Twigg--Flesner, Canterbury Law Review 113, 2001

33 Article 2(4) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

3 4 Article 2(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

35 Article 3(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

36 Article 5(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

37 Article 5(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

38 Article 5(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

39 Article 5(2) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

40 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 41

41 Article 3 of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

42 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 36

43 Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 18

44 Article 3(2) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

45 Article 3(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

46 Article 3(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

47 Article 3(3) and 3(4) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

48 Article 3(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

49 Article 3(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

50 The EC Consumer Sales Directive: A lot still to do, C. Twigg--Flesner, Canterbury Law Review 113, 2001

51 Article 3(5) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

52 Article 3(6) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

53 For an overview of all difficulties pertaining to the resolution of the contract in France, see Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

54 Article 3(5) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

55 Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 19

56 In the UK, no debate surrounded the transposition of the Directive - see Les droits de l'acheteur dans la directive du 25 mai 1999 relative à la vente: actualité d'un texte communautaire à la veille de sa transposition, G . Pignarre, Petites affiches, 27 octobre 2004, n° 215, page 5

57 Quel domaine assigner à la loi de transposition de la Directive Européenne sur la vente, G. Viney, JCP 2002, I, 158 ; Retour sur la transposition de la directive du 25 mai 1999, G. Viney, Dalloz 2002, Chronique page 3162; Transposition de la Directive du 25 Mai 1999 : la parole est à la défense, D. Mazeaud, Dalloz 2003, page 6; Transposition de la directive sur la vente : ne pas manquer une occasion de progrès, P. Jourdain, Recueil Dalloz 2003, page 4

58 Erreur, non--conformité, vice cache: état des questions à l'heure de la transposition de la directive du 25 mai 1999, V. R. Family, Contrats, concurrence, consommation, Avril 2002, chronique page 4; Quelle transposition pour la directive du 25 mai 1999 sur la garantie dans la vente de biens de consommation, G. Paisant and L. Leveneur, JCP 2002, I, page 135; De la Transposition de la Directive du 25 Mai 1999 à la Réforme du Code Civil, O . Tournafond, Dalloz 2002, Chronique page 2883; Transposition de la Directive de 1999 sur la Garantie des Consommateurs -- Article de Foi ou Réalisme Législatif ?, O. Tournafond, Dalloz 2007, chronique page 427

59 ECJ, 1 July 2004, Case C--311--03, Commission v. France; see also Projet de loi relatif à la garantie de conformité du bien au contrat due par le vendeur au consommateur et à la responsabilité du fait des produits défectueux - Exposé général, Sénat, available on this website: http://www.senat.fr/rap/l05--277/l05--2771.html

60 Projet de loi relatif à la garantie de la conformité du bien au contrat due par le vendeur au consommateur et à la responsabilité du fait des produits défectueux, Sénat, Document n° 358, 16 June 2004

61 Ordonnance n° 2005--136 du 17 Février 2005 relative à la garantie de la conformité du bien au contrat due par le vendeur au consommateur

62 Article L. 211--13 of the Consumer Code : "Les dispositions de la présente section ne privent pas l'acheteur du droit d'exercer l'action résultant des vices rédhibitoires telle qu'elle résulte des articles 1641 à 1649 du code civil ou toute autre action de nature contractuelle ou extracontractuelle qui lui est reconnue par la loi"

63 Article 1603 of the Civil Code: « Il [le vendeur] a deux obligations principales, celle de délivrer et celle de garantir la chose qu'il vend

64 See for instance: Transposition de la Directive du 25 Mai 1999 : la parole est à la défense, D. Mazeaud, Dalloz 2003, page 6; Transposition de la directive sur la vente : ne pas manquer une occasion de progrès, P. Jourdain, Recueil Dalloz 2003, page 4

65 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

66 L'ordonnance du 17 février 2005 sur la garantie de conformité : aux regrets s'ajoutent les regrets, D. Mainguy, Revue des contrats, 1er juillet 2005, n°3, page 947; Une nouvelle garantie pour l'acheteur: la garantie de conformité, J. Calais--Auloy, RTD Civ. 2005, page 701; Transposition de la directive sur la vente : ne pas manquer une occasion de progrès, P. Jourdain, Recueil Dalloz 2003, page 4

67 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

68 La garantie de Conformité -- Variations Françaises Autour de la Préservation des Particularités Nationales et de l'Intégration Communautaire, S. Pimont, RTD Com. 2006, page 261

69 Cour de cassation, Première Chambre civile, 27 mars 1990, n° 87--20.084

70 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

71 Cour de cassation, Première Chambre civile, 1st December 1997

72 L'obligation de délivrance dans la vente de meubles corporels, M. Alter, thèse, LGDJ, 1972; Conformité et garantie dans la vente d'objets mobiliers corporels, P. le Tourneau, RTD Com. 1980, page 231; Droit de la responsabilité et des contrats, P. le Tourneau, Dalloz, 2004/2005, n° 5995 and n° 5999; all quoted by S. Pimont in La garantie de Conformité -- Variations Françaises Autour de la Préservation des Particularités Nationales et de l'Intégration Communautaire, RTD Com. 2006, page 261

73 Garantie légale contre les vices cachés - Domaine de la garantie, J. Huet, LexisNexis, Fascicule 20 : Vente

74 Garantie légale contre les vices cachés - Domaine de la garantie, J. Huet, LexisNexis, Fascicule 20 : Vente; for a n example of a latent defect considered as non--conformity by favour for the buyer, see: Cour de cassation, Première Chambre civile, 5 November 1985, Bulletin Civil 1985, I, n° 287 where a defect affecting the wheel of a motorcycle caused an accident

75 Cour de cassation, Première Chambre civile, 20 March 1989, Bulletin civile I, n° 140: « l'obligation de délivrance ne consiste pas seulement à livrer ce qui a été convenu, mais à mettre à la disposition de l'acheteur une chose qui corresponde en tout point au but par lui recherché»

76 Garantie légale contre les vices cachés - Domaine de la garantie, J. Huet, LexisNexis, Fascicule 20: Vente; see for instance : Cour de cassation, Troisième Chambre civile, 27 mars 1991, Dalloz 1992, Jurisprudence, page 95

77 Cour de cassation, Première Chambre Civile, 5 May 1993, Dalloz 1993, Jurisprudence page 506

78 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

79 Loi n° 2008--561 of 17 June 2010

80 Cour de cassation, Troisième Chambre civile, 26 June 2002, n° 00--12.023, Bulletin Civil 2002, III, n° 148

81 Article 2224 of the Civil Code: «Les actions personnelles ou mobilières se prescrivent par cinq ans à compter du jour où le titulaire d'un droit a connu ou aurait dû connaître les faits lui permettant de l'exercer »

82 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

83 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

84 Article 2232 of the Civil code states: "Le report du point de départ, la suspension ou l'interruption de la prescription ne peut avoir pour effet de porter le délai de la prescription extinctive au--delà de vingt ans à compter du jour de la naissance du droit"

85 Article 1315 of the Civil Code ; for an application, see Cour de cassation, Première Chambre civile, 5 November 2009, n° 08--20.705

86 Cour de cassation, Première Chambre civile, 19 March 1996, Bulletin civile 1996, I, n° 147

87 Cour de cassation, Chambre commerciale, 27 April 1966, Bulletin civil 1966, III, n° 206

88 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

89 Cour de cassation, Chambre commerciale, 12 February 1980, Bulletin civil 1980, IV, n° 80

90 Cour de cassation, Chambre commerciale, 1 March 2005, n° 03--19.296, Bulletin Civil 2005, IV, n° 42

91 Garantie de Conformité des Meubles Vendus aux Consommateurs -- Garantie Légale de Conformité -- Garantie Commerciale, L. Leveneur, LexisNexis, Fascicule 1060; Cour de cassation, Chambre commerciale, 3 January 1995; Cour de cassation, Première Chambre civile, 26 June 2001

92 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

93 See for instance : Cour de cassation, Chambre commerciale, 15 November 1988, n° 87--12.239

94 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

95 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

96 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

97 See in particular The Psychology of Consumer Detriment - A Conceptual Review, Prepared for the Office of Fair Trading by P. Lunt, L. Miller, J. Körting, J. Ungemah, January 2006, OFT792

98 The Sale and Supply of Goods to Consumers Regulations 2002 - A Brief Introduction, page 3

99 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

100 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

101 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

102 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

103 Article 1611 of the Civil Code

104 Article 1131 of the Civil Code

105 Article 1612 of the Civil Code: "Le vendeur n'est pas tenu de délivrer la chose, si l'acheteur n'en paye pas le prix, et que le vendeur ne lui ait pas accordé un délai pour le paiement"

106 Cour de cassation, Troisième Chambre civile, 17 January 1990, Bulletin civile 1990, III, n° 25

107 Cour de cassation, Chambre commerciale, 5 October 1993, Bulletin civile 1993, IV, n° 313, page 225

108 See for instance: Cour de cassation, Troisième Chambre civil, 11 May 2005, n° 03--21.136, Bulletin Civil 2005, III, n° 103

109 Article 1 of the Loi n° 91--650 of 9 July 1991

110 Article 33 of the Law n°91--650 of 9 July 1991: « Tout juge peut, même d'office, ordonner une astreinte pour assurer l'exécution de sa décision »

111 Article 1144 of the Civil Code

112 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

113 For a denying of such right, see Cour de cassation, Troisième Chambre civile, 29 January 2003, n° 01--02.759, Bulletin civil 2003, III, n° 23 ; for a decision granting such remedy, see Cour de cassation, Première Chambre civile, 25 March 1997, Bulletin civil 1997, I, n° 111

114 See for instance : Cour d'Appel de Lyon, Première Chambre, 2 November 2000, n° 1997/03052

115 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

116 Article 1610 of the Civil Code: « Si le vendeur manque à faire la délivrance dans le temps convenu entre les parties, l'acquéreur pourra, à son choix, demander la résolution de la vente, ou sa mise en possession, si le retard ne vient que du fait du vendeur »

117 Cour de cassation, Chambre commerciale, 30 October 2007, n° 05 --17.882, Bulletin Civil 2007, IV, n° 231

118 Cour de cassation, 21 March 2006, 02--19.236, Dalloz 2006, IR page 950

119 Cour de cassation, Chambre commerciale, 30 November 1955, III, n° 351

120 See for instance Cour de cassation, Première Chambre civile, 3 Mai 2006, n° 04--20.432, Bulletin civile 2006, I, n° 217

121 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

122 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

123 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

124 Cour de cassation, Première Chambre civile, 14 May 1959, Bulletin Civil 1959, I, n° 245

125 Cour de cassation, Chambre commerciale, 30 March 1981, Bulletin Civil 1981, IV, n° 165

126 See for instance : Cour d'Appel de Colmar, Troisième Chambre civile, 24 November 1997, n° 1997--057288

127 Article 1150 of the Civil Code; Cour de cassation, Première Chambre civile, 25 January 1989

128 Article 1151 of the Civil Code; Cour de cassation, Première Chambre civile, 8 January 1985, Bulletin Civil 1985, I, n° 2

129 Les vices cachés dans la vente ; responsabilités et garanties, P. Langlet, La revue experts, n° 28, Octobre 1995

130 Article 1641 of the Civil Code states: "Le vendeur est tenu de la garantie à raison des défauts cachés de la chose vendue qui la rendent impropre à l'usage auquel on la destine, ou qui diminuent tellement cet usage que l'acheteur ne l'aurait pas acquise, ou n'en aurait donné qu'un moindre prix, s'il les avait connus"

131 Article L. 211--1 of the Consumer Code: « Les règles relatives à la garantie des vices cachés dans les contrats
de consommation sont fixées par les articles 1641 à 1648, premier alinéa, du code civil reproduits ci--après (...) »

132 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente ; see for instance Cour de cassation, Première Chambre civile, 31 January 1966

133 Cour de cassation, Première Chambre civile, 24 November 1983, Gazette du Palais, Mai 1994, pages 31 and 32

134 See for instance Cour de cassation, Chambre commerciale, 15 January 1980, Bulletin Civil 1980, IV, n° 22

135 Cour de cassation, Chambre commerciale, 11 May 1965, Bulletin Civil 1965, III, n° 306

136 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

137 Cour de cassation, Première Chambre civile, 12 March 1980, Bulletin Civil 1980, I, n° 85 where the dog was affected by dysplasia

138 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

139 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

140 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

141 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

142 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

143 Cour de cassation, Chambre commerciale, 19 February 1973

144 Cour de cassation, Chambre commerciale, 9 février 1965, Bulletin Civil 1965, III, n° 103

145 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente

146 See for instance Cour de cassation, Première Chambre civile, 28 November 1979, Dalloz 1979

147 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente; see for instance: Cour de cassation, Deuxième Chambre civile, 30 November 1988, Bulletin Civil 1988, II, n° 240

148 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

149 Former article 1648 of the Civil Code; see Garantie légale contre les vices cachés - Régime de la garantie - Parties à la garantie - Action en garantie et délai pour agir, J. Huet, LexisNexis, Fascicule 40 : Vente

150 er

Conformité et garantie légale , M. Bruschi, revue des contrats, 1July 2005, n° 3, page 710

151 Article 1648 of the Civil Code as amended by the ordinance of 2005

152 Article L. 211 --12 to the Consumer Code, c reated by the Ordinance of 2005, which states: " L'action résultant du défaut de conformité se prescrit par deux ans à compter de la délivrance du bien"

153 Cour de cassation, Première Chambre civile, 24 May 1967, I, n° 183: in this case, the building has been sold by the previous owners a couple of year before the discovery of the defect. Thus, there had been a new delivery and no statute of limitation was applicable

1 5 4 Garantie légale contre les vices cachés - Régime de la garantie - Résultats de l'action en garantie - Moyens de défense du vendeur, J. Huet, LexisNexis, Fascicule 50 : Vente

155 Article 1643 of the Civil Code: "Il [le vendeur] est tenu des vices cachés, quand même il ne les aurait pas connus (...)"

156 Garantie légale contre les vices cachés - Objet de la garantie : le vice caché, J. Huet, LexisNexis, Fascicule 30: Vente; see for instance Cour de cassation, Première Chambre civil, 17 May 1988, Bulletin civil 1988, I, n° 148

157 Article 1644 of the Civil Code : "Dans le cas des articles 1641 et 1643, l'acheteur a le choix de rendre la chose et de se faire restituer le prix, ou de garder la chose et de se faire rendre une partie du prix, telle qu'elle sera arbitrée par experts"

158 Cour de cassation, Chambre commerciale, 22 July 1953, Dalloz 1953, page 587

159 Garantie légale contre les vices cachés - Régime de la garantie - Parties à la garantie - Action en garantie et délai pour agir, J. Huet, LexisNexis, Fascicule 50 : Vente

160 Obligation de délivrance -- Sanctions, M. Mignot, LexisNexis, Fascicule 20 : Vente

161 Cour de cassation, Première Chambre civile, 7 January 1982

162 Garantie légale contre les vices cachés - Régime de la garantie - Résultats de l'action en garantie - Moyens de défense du vendeur, J. Huet, LexisNexis, Fascicule 50 : Vente

163 Cour de cassation, 16 November 1965, Bulletin Civil 1965, III, n° 581

164 Cour de cassation, Chambre mixte, 9 July 2004, n° 2004--024656, Bulletin Chambre mixte 2004, n° 2

165 Cour de cassation, Première Chambre civile, 8 March 2005, n° 2005--027432, Bulletin Civile 2005, I, n° 128

166 Garantie légale contre les vices cachés - Régime de la garantie - Parties à la garantie - Action en garantie et délai pour agir, J. Huet, LexisNexis, Fascicule 50 : Vente

167 Cour de cassation, Première Chambre civile, 3 May 2006, n° 2006--033295

168 See Cour de cassation, Première Chambre civile, 4 January 1979

169 Garantie légale contre les vices cachés - Régime de la garantie - Résultats de l'action en garantie - Moyens de défense du vendeur, J. Huet, LexisNexis, Fascicule 50 : Vente

170 Garantie légale contre les vices cachés - Régime de la garantie - Résultats de l'action en garantie - Moyens de défense du vendeur, J. Huet, LexisNexis, Fascicule 50 : Vente

171 Cour de cassation, 12 December 1984, Bulletin civile 1984, IV, n° 349

172 Cour de cassation, Chambre commerciale, 16 October 1972, Dalloz 1973, page 290

173 Cour d'Appel de Paris, 15 December 1987, Dalloz 1987, page 212

174 Article 1646 of the Civil Code: « Si le vendeur ignorait les vices de la chose, il ne sera tenu qu'à la restitution du prix, età rembourser à l'acquéreur les frais occasionnés par la vente »

175 Article 1646 of the Civil Code : « Si le vendeur connaissait les vices de la chose, il est tenu, outre la restitution du prix qu'il en a reçu, de tous les dommages et intérêts envers l'acheteur »

1 76 Cour d'Appel de Versailles, 31 March 1989, Dalloz 1989, Infos rapides, pages 186; see also Garantie légale contre les vices cachés - Domaine de la garantie, J. Huet, LexisNexis, Fascicule 10 : Vente

177 EC Consumer Law Compendium -- The Consumer Acquis and its transposition in the Member States, H. Schulte--Nölke, Ch. Twigg--Flesner and M. Ebers, European Law Publishers, page 407

178 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

179 Article L. 211--3 of the Consumer Code: « Le présent chapitre est applicable aux relations contractuelles entre le vendeur agissant dans le cadre de son activité professionnelle ou commerciale et l'acheteur agissant en qualité de consommateur »

180 Article L. 211--1 of the Consumer Code: «Les dispositions du présent chapitre s'appliquent aux contrats de vente de biens meubles corporels (...) »

181 Article L. 211--13 of the Consumer Code

182 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

183 Less educated consumers have been proved to have a lower understanding of their right: The Psychology of Consumer Detriment - A Conceptual Review, Prepared for the Office of Fair Trading by P. Lunt, L. Miller, J. Körting, J. Ungemah, January 2006, OFT792

184 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR: JUSX05000050; La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

185 EC Consumer Law Compendium -- The Consumer Acquis and its transposition in the Member States, H. Schulte--Nölke, Ch. Twigg--Flesner and M. Ebers, European Law Publishers, page 421

186 Article L. 211--5 of the Consumer Code

187 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR : JUSX05000050

188 Article L. 211--5 1° of the Consumer Code

189 Article L. 211--5 2° of the Consumer Code

190 Article L. 211--5 1° of the Consumer Code

191 Article L. 211--5 2° of the Consumer Code

192 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

193 Article L. 211--8 of the Consumer Code: «L'acheteur est en droit d'exiger la conformité du bien au contrat. Il ne peut cependant contester la conformité en invoquant un défaut qu'il connaissait ou ne pouvait ignorer lorsqu'il a contracté. Il en va de même lorsque le défaut a son origine dans les matériaux qu'il a lui--même fournis »

194 Article L. 211--8 of the Consumer Code: «L'acheteur est en droit d'exiger la conformité du bien au contrat. Il
ne peut cependant contester la conformité en invoquant un défaut qu'il connaissait ou ne pouvait ignorer

lorsqu 'il a contracté. Il en va de même lorsque le défaut a son origine dans les matériaux qu'il a lui--même fournis »

195 Article L. 211--6 of the Consumer Code

196 Article 2(4) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

197 See § 434 of the BGB, as referred to by G. Paisant in La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

198 Garantie de Conformité des Meubles Vendus aux Consommateurs -- Garantie Légale de Conformité -- Garantie Commerciale, L. Leveneur, LexisNexis, Fascicule 1060

199 Garantie de Conformité des Meubles Vendus aux Consommateurs -- Garantie Légale de Conformité -- Garantie Commerciale, L. Leveneur, LexisNexis, Fascicule 1060

200 Article 5(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

201 Article L. 211--12 of the Consumer Code: « L'action résultant du défaut de conformité se prescrit par deux ans à compter de la délivrance du bien »

202 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

203 La transposition de la directive du 25 Mai 1999 sur les garanties dans la vente de biens de consommation, G. Pa isa nt, Contrats, concurrence, consommation, n° 8, août 2005, étude 8

204 Article L. 211--4 of the Consumer Code: «Le vendeur est tenu de livrer un bien conforme au contrat et répond des défauts de conformité existant lors de la délivrance (...) »

205 Article L. 211--7 of the Consumer Code: «Les défauts de conformité qui apparaissent dans un délai de six mois à partir de la délivrance du bien sont présumés exister au moment de la délivrance, sauf preuve contraire (...) » ; for an application as regard a horse, see Cour d'Appel de Bourges, 10 January 2008, n° 2008--370902

206 Article L. 211--7 of the Consumer Code: «(...) Le vendeur peut combattre cette présomption si celle--ci n'est pas compatible avec la nature du bien ou le défaut de conformité invoqué »

207 See for instance: Cour de cassation, Première Chambre civile, 15 July 1999, n° 1999--003082

208 Rapport au Président de la République relatif à l'ordonnance n° 2005--136 du 17 février 2005 relative à la garantie de conformité du bien au contrat due par le vendeur au consommateur, NOR: JUSX05000050; see Articles L. 211--9 and L. 211--10 of the Consumer Code

209 See Articles L. 211--10 and L. 211--11 of the Consumer Code

210 L'ordonnance du 17 février 2005 sur la garantie de conformité: aux regrets s'ajoutent les regrets, D. M a i nguy, Revue des contrats, 1er juillet 2005, n°3, page 947

211 The Sale and Supply of Goods to Consumers Regulations, 2002, n° 3045

212 Section 48 of the SoGA

213 Sale of Goods and Supply of Services, LexisNexis, Volume 40

214 Section 48F of the SoGA

215 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 114

216 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 121

217 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, from page 157

218 See for instance Arcos Ltd v EA Ronaasen & Son [1933] AC 470

219 Section 15A(1) of the SoGA

220 Section 6 of the Unfair Contract Terms Act 1977

221 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 127

222 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 128

223 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 128

224 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 128

225 Mash and Murrell v Joseph I Emmanuel [1961] 1 All ER 485

226 Section 13 of the SoGA

227 Section 14 of the SoGA

228 Section 14(3) of the SoGA

229 See in particular: Varley v Whipp [1900] 1 QB 513 and Grant v Australian Knitting Mills [1936] AC 85

230 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 116

231 Ashington Piggeries v Christopher Hill [1972] AC 441

232 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 118

233 Harlingdon and Leinster Enterprises v Christopher Hull Fine Art [1991] 1 QB 564

234 Re Moore and Landauer [1921] 2 KB 519; see also: Arcoos v. Ronaasen [1933] AC 470 and Reardon Smith v Hansen--Tangen [1976] 1 WLR 989

235 Section 15 of the SoGA

236 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 119

237 Sale and Supply of Goods, Report, the Law Commission (No 160) and the Scottish Law Commission (No 104), 1987

238 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 119

239 Section 14(2) of the SoGA

240 Section 14(2A) of the SoGA

241

Section 14(2B) of the SoGA

242

Section 14(1) of the SoGA

243

As regard the price, see BS Brown v Craiks [1970] 1 All ET 823

244

Consumers remedies when buying goods or services, Practical Law Company, found on this website: www.practicallaw.com

245

Section 14(2C)(a) of the SoGA

246

Section 14(2C)(b) and (c) of the SoGA

247

A Trader's Guide: The Law Relating to the Supply of Goods and Services, Department of Trade and Industry, April 2005

248

Section 14(2E)(a),(b) and (c) of the SoGA

249

Kendalll v Lillico [1968] 2 All ER 444 ; Ashington Piggeries v Christopher Hill [1972] AC 441

250

Slater v Finning Ltd [1996] 3 All ER 398

251

Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 156

252

See for instance Motor Oil Hellas (Corinth) Refineries S.A. v. Shipping Corpn of India (The Kanchenjunga) [ 1990] 1 Lloyd's Rep. 391 at 398; Buyer's Right to Withhold Performance and Termination of Contract in A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law, M. Jafarzadeh, Published on the website of the Institute of International Commercial Law and available on: http://www.jus.uio.no/pace/buyers_rights_to_withhold_performance_and_termination_of_contract.mirghase mjafarzadeh/3.html

253

See Lakshmijit v. Faiz Sherani (P.C.) [1974] A.C. 605 at 616

254

See for instance Graanhandel T. Vink B.V. v. European Grain and Shipping Ltd. [1989] 2 Lloyd's Rep. 531

255

See M.S.C. Mediterranean Shipping Co. S.A. v. B.R.E--Metro Ltd [1985] 2 Lloyd's Rep. 239 at 240

256 Section 15A(1) of the SoGA

257

Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, pages 160 and 161

258

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 30

259

Section 30 of the SoGA

260

Section 30 of the SoGA

261

See for instance Perkins v Bell [1893] 1 QB 193, quoted in Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 34

262

See Manifatture Tessile Laniera Wooltex v J B Ashley Limited [1979] 2 Lloyd's Reports 28 for all buyers and Bernstein v Pamson Motors (Golders Green) Limited [1987] 2 All ER 220 for consumers in particular, both

quoted in Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 34

263

Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459

264

Section 35(6) of the SoGA

265

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 14

266

Section 35(1)(a) of the SoGA; see Saunders v Topp [1849] 4 Exch 390 or, more recently, Clegg v Andersson [2003] EWCA Civ 320

267

Section 35(6) of the SoGA; J & H Ritchie Limited v Lloyd Limited, [2007] 2 All ER 353, commented in contract: sale of goods -- buyer's remedies, S. Foster and N. McKay, Coventry law Journal, 2007 and in Sale of Goods in Scotland -- A Second Tender: J&H Richtie Ltd v Lloyd Ltd, M. Bridge, Journal of Business Law, 2007; Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 33

268

Section 35(1) and 35(4) of the SoGA; see Morrison and Mason Ltd v Clarkson Bros [1898] 25 R 427 and Bushel v Wheeler [1844] 15 QB 442n where the buyer retained the good for five months without saying anything to the seller

269

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 41; Sale of Goods -- Remedy of Rejection -- How Quickly is the Right Lost? S. Hedley, Cambridge Law Journal, 2001

270

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 25

271

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 41

272

Section 59 of the SoGA; see Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 33

273

The Right to Reject, G. Dehn and R. Cranston, Journal of Business Law, 1990

274

Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459

275

Section 35(5) of the SoGA

276

Truk (UK) Limited v Tokmakidis GmbH [2000] 2 All ER (Comm) 594, see Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 37

277

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 42

278

Buyer's Right to Withhold Performance and Termination of Contract in A Comparative Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law, M. J afa rza d e h, Published on the website of the Institute of International Commercial Law and available on: http://www.jus.uio.no/pace/buyers_rights_to_withhold_performance_and_termination_of_contract.mirghase mjafarzadeh/3.html

279

Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 20

280 Section 36 of the SoGA

281 Section 28 of the SoGA

282 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, page 157

283 Total Oil (Great Britain) Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318

284 Section 52 of the SoGA

285 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, from page 165; see Cohen v Roche [1927] 1 KB 169 and Bronx Engineering [1975] 1 Lloyd's Report 475

286 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, from page 165

287 Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 15

288 Section 51 of the SoGA

289 Section 53 of the SoGA

290 Sale of goods: arrangements for repairs, Practical Law Company, found on this website: www.practicallaw.com

291 Sale and Supply of Goods, M. Furmston, Third Edition, Cavendish Publishing Limited, from page 172

292 Sale of goods: arrangements for repairs, Practical Law Company, found on this website: www.practicallaw.com

293 Section 53(2) of the SoGA

294 Section 53(3) of the SoGA

295 Sale of goods: arrangements for repairs, Practical Law Company, found on this website: www.practicallaw.com

296 The Sale and Supply of Goods to Consumers Regulations, 2002, n° 3045

297 Section 48F of the SoGA

298 Implementation of the Directive 1999/44/EC on certain aspect of the sale of consumer goods and associated guarantees in the United Kingdom, J. Jirkal, found on this website:
http://www.epravo.cz/top/clan ky/implementation--of--the--directive--199944ec--on--certain--aspects--of--t he--sa l e--

of--con su m e r--goods--and--associated--guarantees--in--the--united--kingdom--18869.html

299 Section 48B(1) of the SoGA

300 Section 48B(2) of the SoGA

301 Section 48B(3) of the SoGA

302 Section 48A(3) of the SoGA

303 Section 5 of the Limitation Act 1980

304 A Trader's Guide: The Law Relating to the Supply of Goods and Services, Department of Trade and Industry, April 2005

305 The term «Acquis» is borrowed from the French word acquis which means «that which has been acquired» - see Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 4

306 Green Paper on the Review of the Consumer Acquis, Commission of the European Communities, COM (2006) 744 final, page 3

307 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010: «The proposed law must balance businesses' need for legal certainty with a guarantee for the highest level of consumer protection»

308 Green Paper on the Review of the Consumer Acquis, Commission of the European Communities, COM (2006) 744 final, page 3 and 4

309 Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises; Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 97/7/EC of 20 May 1997on the protection of consumers in respect of distance contracts; Directive 99/44/EC of 26 May 1999 on certain aspects of the sale of consumer goods and associated guarantees

310 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3, pages 2 and 3

311 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 5

312 Green Paper on the Review of the Consumer Acquis, Commission of the European Communities, COM (2006) 744 final, page 6

313 Harmonisation of Remedies for Lack of Conformity in Consumer Contracts - A Comparative Law and Economic Analysis on the European Commission's Proposal for A Directive on Consumer Rights, Ch. Svanholm, page 30

314 Article 2.2 of the Treaty of Lisbon: «The Union shall establish an internal market» ( http://eur-- lex. e u ropa .e u/LexU riSe rv/LexU riServ.d o?u ri=OJ :C : 2007 :306:00 10 :0041 : E N : P D F)

315 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3, page 2

316 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3, page 2

317 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3, page 2

318 Treaty on the Functioning of the European Union

319 Article 114(3) of the Treaty on the Functioning of the European Union

3 20 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 3

321 The proposed Consumer Rights Directive - less haste, more thought?, Ch. Twigg--Flesner and D. Metcalfe, page 3; Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 14

322 The proposed Consumer Rights Directive - less haste, more thought?, Ch. Twigg--Flesner and D. Metcalfe, page 16

323 Davidson Review - Implementation of EU Legislation, Final Report, November 2006, Better Regulation Executive (BRE), page 22

324 Article 4 of the Proposal for a Directive of the European Parliament and of the Council on consumer rights: «Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer provisions»

325 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 17

326 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 36

327 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 46

328 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 58

329 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010

330 Article 24(1) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

331 This is inferred from article 24(2) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

332 Article 22(1) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

333 Article 22(2) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

334 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 21

335 See Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 21 and 22

3 3 6 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich, page 506

337 Article 24(3) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

338 Article 2(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

339 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 26

340 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights' , H--W. M icklitz and N. Reich

341 Article 35(3) of the United Nations Convention on Contract for the International Sale of Goods (1980), usually referred to as the «Vienna Sales Convention»

342 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 31

343 Article 28(5) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

344 Article 5(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

345 See article 22 and 23 of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

346 The suggestion is supported by the Law Commission and the Scottish Law Commission in Consumer Remedies for Faulty Goods, Joint Consultation paper of the Law Commission and the Scottish Law Commission, page 109. For an opposite view, see Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 31

347 Article 28(4) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

348 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich

349 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 34

350 Article 5(1) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

351 Article 28(1) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

352 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 28

353 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 27

354 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 29

355 Article 28(2) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

3 5 6 Article 28(2) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

357 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 30

358 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights' , H--W. M icklitz and N. Reich

359 Article 3(3) of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspect of the sale of consumer goods and associated guarantee

360 Article 26(2) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

361 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 37

362 Consumer Sales Law i n the Proposal for a Consumer Rights Directive, M. Loos, page 40

363 Consumer Sales Law in the Proposal for a Consumer Rights Directive, M. Loos, page 40

364 Article 26(4) of the Proposal for a Directive of the European Parliament and of the Council on consumer rights

365 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich

366 Consumer policy strategy 2002--2006, Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, COM (2002), page 12

367 Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services; Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business--to--consumer commercial practices in the internal market; Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long--term holiday product, resale and exchange contracts, OJ 2009, L 33/10

368 The proposed Consumer Rights Directive - less haste, more thought?, Ch. Twigg--Flesner and D. Metcalfe, page 3

369 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich, page 517

370 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business--to--consumer commercial practices in the internal market

371 ECJ, 23 April 2009, Joined Cases C--261/07 and C--299/07, VTB--VAB NV v Total Belgium NV and Galatea BVBA v Sanoma Magazines Belgium NV

372 ECJ, 14 January 2010, C--304/08, Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. v. Plus Warengesellschaft GmbH

373 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010

3 74 ECJ, 4 July 2006, C--212/04, Konstantinos Adeneler and Others v Ellinikos Organismos Galaktos (ELOG) [2006] ECR

375 Harmonisation of Remedies for Lack of Conformity in Consumer Contracts - A Comparative Law and Economic Analysis on the European Commission's Proposal for A Directive on Consumer Rights, Ch. Svanholm, page 24

376 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 2

377 As stated by Wilhelmsson in «Full Harmonisation of Consumer Contract Law», quoted by Ch. Twigg--Flesner and D. Metcalfe in The proposed Consumer Rights Directive - less haste, more thought?

378 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 15

379 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 2

380 Harmonisation of Remedies for Lack of Conformity in Consumer Contracts - A Comparative Law and Economic Analysis on the European Commission's Proposal for A Directive on Consumer Rights, Ch. Svanholm, page 24

381 Proposal for a Directive of the European Parliament and the Council on Consumer Rights (Explanatory Memorandum), Commission of the European Communities, COM (2008) 614/3, pages 2 and 3

382 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits; Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 8

383 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 8

384 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

385 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

386 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich

387 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. M icklitz and N. Reich

388 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010

389 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

390 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits; Full
harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the

Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 10 and 11

391 G. Low, The (Ir)Relevance of Harmonization and Legal Diversity to European Contract Law: A Perspective from Psychology, European Review of Private Law 2010/2, quoted by M. Loos in Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 8

392 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 8

393 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits; Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 8

394 See in particular: The proposed Consumer Rights Directive - less haste, more thought?, Ch. Twigg--Flesner and D. Metcalfe, page 4 and Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights', H--W. Micklitz and N. Reich page 477

395 The proposed Consumer Rights Directive - less haste, more thought?, Ch. Twigg--Flesner and D. Metcalfe, page 4

396 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights' , H--W. M icklitz and N. Reich, page 477

397 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 17

398 L. Froòkova, The new Directive on consumer protection: objectives from the perspective of the EU and the Member States, in: H. Schulte--Nolke, L. Tichy (eds.), Perspectives for European Consumer Law. Towards a Directive on consumer rights, Munich: Sellier, 2009, p. 91, quoted by M. Loos in Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 18

399 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 17

400 Cronica De Una Muerte Anunciada: The Commission Proposal for a 'Directive on Consumer Rights' , H--W. M icklitz and N. Reich; Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

401 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

402 As highlighted by J. Myard in the debate which followed the presentation of the report of Mme Karamanli: Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 73

403 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 60

404 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

405 Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights, Jan Smits

406 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 61

407 Full harmonisation as a regulatory concept and its consequences for the national legal orders -- The example of the Consumer rights directive, M. Loos, Centre for the Study of European Contract Law Working Paper Series No. 2010/03, page 26

408 EC Consumer Law Compendium -- The Consumer Acquis and its transposition in the Member States, H. Schulte--Nölke, Ch. Twigg--Flesner and M. Ebers, European Law Publishers, page 502

409 An Ambitious Consumer Rights Directive: Boosting Consumers' protection and helping businesses, V. Reding, Vice--President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Speech pronounced during the European Consumer Day 2010 in Madrid, 15 March 2010

410 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 65

411 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 65

412 Droit des consommateurs: une harmonisation pragmatique pour une protection efficace, Mme Karamanli, Commission des Affaires Européennes, Assemblée Nationale, Rapport d'information n°2099, December 2009, page 65