Derogation from the contract for the sale of goods under warranty
If the item sold has a defect, the buyer may make a declaration of withdrawal unless the seller immediately and without undue inconvenience to the buyer replaces the defective item with a defect free of defects or removes the defect. This limitation shall not apply if the item has already been mentioned or repaired by the seller or the seller has not satisfied the work to exchange items for defects or to remove defects (Art. 560 §1 kc).
Mutual reimbursement of the benefits of the parties upon withdrawal from the contract
Pursuant to Article 494 § 1 k.c., a organization who waives a common agreement shall be obliged to return to the another organization all that it has received under the agreement and the another organization shall accept it. A organization that withdraws from the contract may request not only the reimbursement of what it has demonstrated, but besides the general compensation of the harm resulting from the default.
Valorisation of the price of goods erstwhile withdrawing from the contract with guarantees
The ultimate Court in its resolution of 27 February 2003, Act III CZP 80/02 – OSNC 2003, No. 11, item 141 concluded that the consequence of the withdrawal from the contract was the termination of the ex tunc sale agreement and the related work to reimburse benefits in kind. Repayment of benefits shall include the thing in which it was at the time of the declaration of will to retreat from the contract., under average operation.
However, due to the advanced inflation or the increase in the price of a given consumer good, a organization who deviates from the contract and receives a refund of the price may not be able to acquisition for the returned amount an inadequacy corresponding to the returned item.
However there is simply a dispute, however, the withdrawal from the sale contract at warranty is similar, in principle, to the reimbursement of benefits upon the termination of the contract*. In its judgement of 30 September 2009 in Case V CSK 33/09, the ultimate Court indicated that the consequence of the nullity of the common agreement was that Article 497 k.c. required the appropriate application of Article 496 k.c., meaning that the parties to the invalid contract were obliged to repay the common benefits (Article 496 k.c. in conjunction with Article 494 k.c.). Since the rule of equivalentity of benefits applies to common agreements and so their economical balance, the benefits reimbursed following the annulment of the common agreement should so be equivalent. Since the benefits of the parties are to be equivalent at the time of payment of the refund, they shall be reimbursed as a consequence of the cancellation of the sale contract. the acquisition price should correspond to the current value of the property to be recovered, and 1 of the legal instruments likely to lead to the equivalence of common benefits reimbursed is judicial valorisation.
The ultimate Court pointed out that since the defendant’s work to return an equivalent cash benefit was a monetary liability and the amount of the liability did not find the nominal amount of the sum of money received before the year, but the amount corresponding to its real value at the time erstwhile the work to reimburse was created. However, the theoretical anticipation of utilizing the instrument of judicial valorisation (Article 3581 §3 k.c.), which is simply a derogation from the rule of nominalism (Article 3581 §1 k.c.), requires a prior assessment of the admissibility of utilizing this instrument in the circumstantial circumstances of each case, and this is in the light of the conditions justifying the application by the legislator of Article 3581 §4 k.c. of the prohibition on the court to require that the amount of the cash benefit be changed, inter alia.
In order to measure the purchasing power of money, account should be taken of the situation on the marketplace of certain tangible goods, which always present a real value (yes: ultimate Court judgement of 5 December 2000, IV CKN 181/00, non-publ.). On reimbursement of common benefits, in the event of an invalid property sale contract (Article 496 k.c. in conjunction with Article 497 k.c.), the advanced limit for the valorisation of the price paid in money (Article 3581 §3 k.c.) is the value of that property on the date of settlement of the case. The essence of the equivalent of the benefits to be recovered is that the amount reimbursed under the acquisition price corresponds to the actual value of the property returned, which demonstrates compliance with the sense of fairness and results from the consideration of the interests of the parties (yes: judgement of the ultimate Court of 20 December 1995, I CRN 191/95, OSNC 1996/4/61; judgement of the ultimate Court of 25 July 2001, I CKN 25/99, non-publ.).
From the minute of the work to repay the benefit by an entity which has received the payment of the price from an invalid sale contract, the amount of which is not determined by the nominal amount of the money paid, but by the sum corresponding to its real value at the time of the work to repay it (yes: the ultimate Court resolution of 8 October 1992, III CZP 117/92, OSNC 1993/4/57).
The above rules should besides appear to apply in the event of withdrawal from the sales contract during implementation warranty rights."
In turn, the ultimate Court in its judgement of 22 January 2009, III CSK 267/2008, LexPolonica No. 2375474, Lex No. 527242 considered that there was no reason to reduce the benefit reimbursed under Article 494 as a consequence of the expiry of the right to correct the taxation return under Article 86(13) of the 2004 Goods and Services taxation Act. Reimbursement of benefits under Article 494 does not include a mechanics to verify the amount of benefits fulfilled and subsequently reimbursed. Under this instrument, it is not possible to modify the amount of benefits above or below their nominal value resulting from the contract. This view does not preclude verification of the amount of benefits reimbursed by another legal instruments. specified benefits may be subject to judicial valorisation if the conditions of Article 358 1 (3) are fulfilled., non-execution or improper execution of the work to repay may consequence in an work to make good the harm suffered by the counterparty.
The Court of Appeal in Łódź indicated in its judgement of 29 December 1995, the signature of the Act. I ACr 612/95, LexPolonica No. 315287, OSA 1996, No. 6, p. 49) that the claim that the refund of the cash remuneration paid on the basis of Article 494 k.c. is simply a money claim in the strict sense of the word and as specified is subject to valorisation, is actual that, in general, the application of Article 3581 § 3 k.c. will not be useful. Valorisation must not relate to the effects of this change in the purchasing power of money which occurred between the time of the performance of the common work and the time of its recovery, but only to the time of withdrawal from the contract until the recovery of the benefit. It is not possible to value the obligation, including the reimbursement of the benefit and arising only at the time of withdrawal from the contract, taking as a basis the purchasing power of the money before its creation. At the same time, it is uncommon that the conditions for valorisation happen between withdrawal from the contract and recovery of the benefit.
Therefore, the possible failure suffered by the departing organization may be offset, but not in the form of valorisation, but in the form of compensation for damage (Yes: ultimate Court Resolution of 13 May 1987, III CZP 82/86, LexPolonica No 296199, OSN 1987, No. 12, No. 189, and the judgement of the ultimate Court of 25 May 2008, II CSK 35/2008, LexPolonica No. 1908036, with the voice of M. Kalinski, ‘Glosa’ 2009, No. 3, p. 19, Implementation and consequences of default from common agreements. Commentary on Art. 487-497 of the civilian Code, Lemkowski Marcin, Author of the Commentary on Fr.Trzecia tit. VII dc. III art. 494: Marcin Lemkowski).
Valorisation of the price of goods utilizing Art. 494 k.c.
Author Marcin Lemkowski (in: Commentary on Art. 487-497 of the civilian Code, Lemkowski Marcin, Author of the Commentary on Fr.Trzecić title VII dz. III art. 494) indicates that a circumstantial case for the application of Article 494 k.c. occurs when, between the conclusion of the contract and the withdrawal from it, the prices of goods subject to the contract have changed.. The case law recorded at least 2 specified cases, with a price expanding in 1 of them, causing a alleged substitute acquisition to be made, while in the another it decreased, resulting in the usage of replacement sales structures.
The first of these cases was settled in a resolution of the ultimate Court of 13 May 1987, III CZP 82/86, LexPolonica No. 296199, OSN 1987, No. 12, no. 189, so that if the buyer has resigned from the contract due to a defect in the item sold, he has the right to claim compensation equalising besides the difference between the price from the contract and the 1 in force on the replacement date of satisfaction by the acquisition of another item of the same kind. If, therefore, the contract was concluded during the period of the increase in the price of the goods subject to it, then the organization must retreat from the contract in the form of compensation to the counterparty specified an amount which, in addition to the fact that the refunded price, is adequate for the acquisition on the marketplace of the same kind of goods. The hazard of price increases is so borne by those parties which give emergence to withdrawal from the contract.
The second situation was considered in the ultimate Court judgement of 28 May 2008, II CSK 35/2008, LexPolonica No 1908036, ‘Law Monitor’ 2008, No 13. The parties concluded a sales agreement which the buyer did not carry out, resulting in the seller withdrawing from the contract. At the same time, the price of the goods subject to the work fell rather importantly (by around 30%), which was the reason why the buyer, who was able to acquisition the same goods cheaper from another source. Although the reasons for the ultimate Court’s ruling are unfortunately not transparent, it is clear from it that the possible fall in the price of the goods covered by the contract besides falls under the work of the organization which gives emergence to withdrawal from the contract. The seller may so claim payment of the compensation calculated as the difference between the price to be paid under the contract and the current price, with mostly the minute of withdrawal of the contract being decisive for its determination.
