Abstract

Proposed amendments of the statutory provisions concerning liability for defects of the object of performance, primarily with respect to statutory warranty, are in a large measure favourable to the entitled party, especially the consumer. The buyer who is an entrepreneur will not have the same entitlements as the consumer.

Of considerable importance is to specify clearly which buyer is obligated to perform so-called quality acceptance of the thing sols, that is its examination at the time of delivery -- this duty will rest on the entrepreneur.

A good solution is to prolong the term of liability under statutory warranty for defects, especially the five-year period of liability for defects of real property, but there might be a problem with specifying the notion of real property. Including buildings and structures in this term will be of great importance for public procurement contracts. On the other hand, introduction of time limitation for claims to repair or replace may significantly restrict the entitlements of the buyer who is an entrepreneur -- there is a danger that he will be deprived of the possibility to demand a repair or replacement (despite continuing seller’s liability for defects) after the lapse of one year. However, the legislator does not specify the time from which that period is to be counted.

Of significance is also the freedom to select the entitlements (for the entrepreneur as a buyer only for certain time) under statutory warranty for defects and making the position of the entitled parties equal -- separation from the type of the civil law contract and stressing equivalence of performances. Under a work or construction contract, the contracting authority will not need to refer to the division into removable and non-removable defects. The division into material and immaterial defects will be of significance -- it will be impossible to withdraw from the contract if the defect is immaterial. On the other hand, it will be possible to demand replacement for a thing free of defects without earlier request of its repair. Although the seller will be entitled to object.

In case of quality assurance, of primary importance is the provision stipulating straightforwardly the possibility of granting its for a work, that is also a building structure.