Other engine in the car as a defect and basis for withdrawal or price reduction

The author of the entry is Advocate

Pursuant to Article 556 KC The seller is liable to the buyer if the item sold has a physical or legal defect (arm). The statutory liability for the warranty is independent of the responsibility and imposes on the seller whether he knew or could have known that the sold item was defective (Case SA in Katowice of 5 March 2009 V Ca 484/08, judgement SA in Białystok of 24 March 2015 and ACa 373/14). The doctrine correctly defines this kind of work as nonsubjective liability based on the rule of hazard or otherwise as absolute responsibility.A adequate factual basis for this work is to establish that the item acquired by the buyer shows the characteristics which, in a given legal relationship, qualify it as a defective thing.

The issue of a physical defect is set out in Article 556¹ § 1 KC indicating that The physical defect is the non-compliance of the goods sold with the contract. When assessing the conformity of the goods with the contract, consideration shall be given to whether the thing has the characteristics which the buyer may reasonably anticipate to have on the basis of any circumstances associated with the acquisition. The provision indicates examples of physical defects. First, a sale shall be incompatible with the contract if:

1. there is no jurisdiction which, by reason of the intent of the contract, should be identified either by circumstances or by destination

2. There are no properties that the seller provided to the buyer

3. was issued to the buyer in an incomplete state.

Pursuant to Article 557(1) KC, the seller is exempted from liability under the warranty only if the buyer knew of the defect at the time of conclusion of the contract. In accordance with Article 560(1) of the KC, if the item sold is defective, the buyer has the right to choose either to retreat from the contract or to request a simplification in the price. The declaration of withdrawal from the common agreement shall be of a law which shall consequence in the nullification of the contract and recovery of all that has been provided for it. (Article 494 KC).

The case-law emphasises that erstwhile a buyer withdraws from the contract, there is no work to pay remuneration for the intended usage of the item to be recovered. (e.g. ultimate Court resolution of 26 October 1972, III CZP 48/72). Alternatively, should the seller show that the simplification in the value of the goods was a consequence of the circumstances for which the buyer was liable, as well as the usage of it after making a declaration of withdrawal from the contract, it would be possible to request a simplification in the buyer's due and the repayable common benefit (judgment of the ultimate Court of 3 July 1980, II CR 190/80). However, specified circumstances were not presented by the suspect to justify the charge of deduction; he relied solely on the average consumption of goods and the general anticipation for the buyer to usage it.

So if we buy a car that has a different engine capacity in the registration card and another in the actual one, we can either ask for a lower price or retreat from the contract. What can we do with a car like this erstwhile we're misled and we feel cheated by a salesman?

Example of a Judicial Case

It was uncontested between the parties that the parties concluded a contract on 3 August 2018 to acquisition the A. (...) car, year of production 2008, with registration number (...). On the another hand, the issue was whether at the time of the sale the vehicle had defects justifying effective withdrawal. In particular, whether all the papers essential for the registration of the vehicle were issued to the claimant and whether the vehicle had all the characteristics which the seller had provided. The Court of First Instance, after having carried out the evidence procedure, decided in favour of the plaintiff.

The physical defect of the vehicle was the deficiency of an engine of 3000 m³, as the plaintiff was assured by entry of this capacity and capacity of 176 kW in the registration certificate. The suspect raises the deficiency of cognition about engine capacity. This fact is irrelevant to the defendant’s liability, as below, although this claim raises doubts in the light of the defendant’s allegations. It should be pointed to the defendant's claim that the plaintiff, having cognition of the front wheel drive announcement, was aware that the engine in the vehicle was weaker than the parameters of this vehicle, due to the fact that if it had 3000 m³That would have a two-axle drive. As indicated above, he had no cognition at the time of acquisition that the vehicle had 1 axle drive due to the fact that it was not given in the notice. However, since the suspect had specified cognition of the drive, her husband and boy meant that she knew that the engine in the vehicle was weaker than the parameters of the vehicle, due to the fact that if it had 3000 m³That would have been a two-axle drive. This awareness of the suspect is all the more justified as it operates a vehicle mechanics plant.

Pursuant to Article 556 KC The seller is liable to the buyer if the item sold has a physical or legal defect (arm). The statutory liability of the warranty is independent of the responsibility and imposes on the seller whether he knew or could have known that the sold item was defective (SA judgement in Katowice of 5 March 2009 V Ca 484/08, SA judgement in Białystok of 24 March 2015 I ACa 373/14). The doctrine correctly defines this kind of work as nonsubjective liability based on the rule of hazard or otherwise as absolute responsibility. A adequate factual basis for this work is to establish that the item acquired by the buyer demonstrates the characteristics which, in a given legal relationship, qualify it as a defective thing. Therefore, it was irrelevant to the defendant's work that she did not know that the car which she sold to the plaintiff had an engine capacity of 2698 m³ and power 140 KW alternatively of 3000 m³ and the power of 176 kW according to registration record. Pursuant to Article 557(1) KC, the seller is exempted from liability under the warranty only if the buyer was aware of the defect at the time the contract was concluded. The reason clearly did not know about the lower engine capacity and power, since the suspect did not really know about it. The suspect did not, in fact, rise in the course of the trial that the plaintiff knew about the weaker engine and the incompatibility of entries in the registration certificate, only claimed that he should have guessed since the vehicle was after the full harm and had a front-wheel drive. Since the plaintiff was not informed of this by the defendant, he was not obliged to check the car in specified item since there was nothing disturbing about the data he obtained.

The issue of whether or not method defects revealed in the vehicle is applicable or not The Court of First Instance has decided on the basis of an expert opinion on automotive technology and road traffic. W. Z.. According to the expert's opinion, the installation in the contested vehicle of an engine of little capacity and power than indicated in the registration certificate and drive only on the front axle constitutes a crucial defect. The expert indicated that lower engine power worsens the traction properties of the vehicle. The vehicle has a lower acceleration, reaches a lower maximum velocity and is little flexible. The deficiency of drive on all wheels affects the adhesion of the wheels and affects the safety and traction properties of the vehicle. Drive on all wheels improves the adhesion of the wheels, thus minimising slipping in motion erstwhile moving, on the curves of the road, erstwhile moving on a slippery and wet surface and speeding, and facilitates the entry into greater slopes in peculiar on wet, snowy and unhardened road. An crucial disadvantage is the non-compliance of the actual method parameters of the vehicle, i.e. the engine capacity and its power, with entries in the registration certificate.

After the buyer has chosen 1 of his rights, the buyer shall submit a declaration of intent. The plaintiff stated by letter dated 16 August 2018 that he had withdrawn from the contract (k. 22-22v act). The declaration of withdrawal from the common agreement is of a law-making nature which results in the nullification of the contract and the recovery of all that has been provided for it (Article 494 of the CCC). For this reason, the Court of First Instance considered that the claim of the claimant to reimburse the price paid for the acquisition of the car was justified.

In view of the above, the Court of First Instance considered that the claimant had effectively waived the acquisition contract in accordance with Article 560(1) KC. In the event of an effective withdrawal from the contract, the suspect in accordance with Article 494 KC shall reimburse the claimant paid the acquisition price of PLN 45,000. That is besides the amount the Court of First Instance has ruled from the suspect to the plaintiff. judgement of the territory Court of Kwidzyn - First civilian Division of 26 September 2019. I C 179/19

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With respect.