Unaccepted complaint – how to defend yourself?

How do I claim used or second-hand goods?

If you are buying used goods (whether it is a car or a washing machine), there is a 24-month period for defects and claims. However, the law allows you to reduce this period by up to half, i.e. 12 months. The reduced period of liability for defects must always be indicated on the proof of purchase.

For used goods, it is necessary to take into account that their condition corresponds to the level of previous use. The seller is therefore not liable for defects that correspond to normal wear and tear or that were expressly brought to the buyer’s attention at the time of purchase. However, the buyer shall be liable for other defects in the same way as for new goods.

When you order on an e-shop, it always depends on what is stated in the advertisement. Let’s explain this with an example:

• You bought a phone in an online bazaar that was stated to be fully functional. However, it came home with a cracked display that makes it impossible to use it fully. In this case, it is a material breach of contract = you can withdraw from the contract, ask for a repair or a discount. You cannot ask for a replacement.
• If your phone arrives with a scratched cover, which does not affect its functionality, this is a non-substantial breach of contract. This depends on whether you were warned about the scratched cover beforehand. If not, you can ask for a repair or a discount.

A defect has appeared in the goods within 24 months – how do I claim?

You can claim the goods at the seller’s premises or at an authorised service centre listed on the warranty card. The place of claim is determined by the registration number or business name on the receipt. In the case of a network of stores managed by one company, you can claim the goods at any of their stores. The exception is franchises, which use the same logo and brand name, but in most cases they are different business entities.

What can you claim?

Here are a few options that determine what you are entitled to:

• If the defect manifests itself within 12 months of the purchase of the goods, the goods are deemed to have been defective to begin with, and you can claim to have the defect rectified by repairing or replacing the item if the chosen method is reasonable and possible.
• However, in the case of a defect that can be repaired without undue delay, you do not have such a claim.
• In a situation where neither replacement nor easy repair is possible, you can decide whether to withdraw from the contract or claim a discount.
• If the same defect reappears after repair, or if you claim 4 or more different defects on the same product, you are automatically entitled to either a replacement or a withdrawal and refund.
• You must always indicate your preferred method of claim on the claim form.

However, you are not always entitled to all of the above methods. You do not have the right to a replacement if you have bought the goods second-hand – at a lower price because of the defect complained of, if you are only complaining about part of the goods or if the goods you want are not available (for example, if they have sold out).

You can then withdraw from the contract and claim money if:

• the defect cannot be rectified and the goods cannot be exchanged for new ones,
• the defect makes it impossible to use the goods and thus there is a material breach of the purchase contract,
• the same defect appears on the goods for the third time,
• you are claiming 4 defects at the same time that prevent the proper use of the goods,
• the seller fails to meet the deadline for handling the complaint.

By when does the seller have to settle your claim?

The seller must first decide whether to accept the complaint. At this stage, he does not yet assess the defects, but focuses on the general requirements for the possibility of exercising rights under the defective performance. The seller usually decides whether to accept the claim immediately, but in more complex cases he has a deadline of 3 days. The 30-day period for dealing with the complaint then starts.

What is good to know about the 30-day claim period?

• It is 30 calendar days. If the last day of the deadline is a weekend or holiday, the time to process the claim is extended to the next business day.
• The period starts from the day on which the seller is notified of the defect and thus the right to liability for defects in the goods sold is exercised = the day after you have notified the complaint in person or by phone or after you have received an e-mail or letter.
• If the complaint is not settled within 30 days and the seller does not contact you, you automatically have the right to withdraw from the contract.

What should I do if the seller rejects the claim?

A rejected complaint is very common in practice. The most common reasons given by sellers are that the fault is not covered by the warranty because it was caused by improper handling, or that the fault has not manifested itself. To avoid the argument of non-manifestation of the defect, we recommend that you have the defect examined on site by a member of staff and make a note of this on the claim form.

It is important to know that the seller can only reject the defect on the grounds set out in the law:

• You are complaining to a different trader than the one who sold you the goods.
• You are complaining about defects that you knew about and were notified of when you entered into the contract.
• The defect complained of was caused by your damage to the item or your failure to follow the manual.
• You cannot claim for wear and tear caused by normal use of the item. But, for example, excessive wear and tear to shoes or clothes over a very short period of time can be claimed. Here, however, it is preferable to use the services of an expert.
• The seller is not liable for defects that occur after 24 months of receipt. You can make a complaint, but you will have to prove that the defects occurred before this period.

What if you disagree with the rejection of a claim?

There are several situations and thus several solutions. In cases where you have resolved the complaint with the repair shop, you have the option of contacting the seller directly to resolve the dispute.

If the seller disputes the nature of the defect, the most effective help may be the opinion of an impartial expert in the field. In the first 6 months, you are at an advantage. It is presumed that the goods were defective to begin with, and so the seller must prove that this was not the case – it is not enough for them to say so. If there were to be a court settlement, he would have to provide proof or he would lose the dispute.

After 6 months of use, the burden of proving that the reason for rejecting the claim was wrong will be on you. By using an expert opinion, you can strengthen the evidentiary position, which will ultimately force the seller to additionally acknowledge the claim. It is worth knowing that the cost of the report is usually covered by the costs of the claim and you are entitled to claim reimbursement from the seller.

Often sellers will also dispute that the claim was not made in time. In this case, the best solution is to contact a lawyer or consumer organisation.

Out-of-court settlement of an unrecognised complaint – what the CCI can help you with

Since 1 February 2016,the Czech Trade Inspection Authority has not only acted as a supervisory authority, but also as an out-of-court dispute resolution body. This is a free form of dispute resolution, which should be faster than traditional court proceedings, and takes place mainly in writing. The application can be submitted simply by filling in the form on the CTIA website.

The application must always be accompanied by evidence of the fact that you have not been able to resolve the dispute directly with the trader, as well as other documents proving the facts you claim.

Most often these are:

• a copy of the receipt,
• the order confirmation for the goods,
• a copy of the complaint report,
• a copy of the report on the settlement or rejection of the complaint,
• evidence of further communication regarding the complaint.

However, the disadvantage of out-of-court dispute resolution is the fact that the seller cannot be forced to reach an agreement and performance is based on voluntariness. The result is a written or verbal agreement between the consumer and the seller, but if the seller fails to comply in part or in full, you have no choice but to go to court.

In this case, the CTIA has no power to enforce compliance with the agreement.

Pre-action notice to reject a complaint and possible court settlement

The next step is a written pre-action notice to seek redress. The pre-action notice should also state that, in the event of litigation , you will be claiming, among other things, the cost of an expert’s report as well as other costs related to the claim, including legal costs.

We recommend that you always consult a lawyer before filing a claim to ensure that the law is on your side.

What about the judicial resolution of consumer disputes?

It should be added that most consumer disputes are so-called trivial disputes, where the amounts involved are up to CZK 10,000. In these cases, it is not possible to appeal against the court’s decision, only to file a constitutional complaint. The Constitutional Court, however, is extremely restrained in its current case law and takes the categorical view that the mere trivial amount of the dispute is not capable of achieving the intensity of a violation of fundamental rights and freedoms, with few exceptions.

It is therefore necessary to prepare and send all the arguments to the Court of First Instance. Nevertheless, the decision may not be fair, even on the issue of costs, because the court may not award everything that has been put into the trial.

Beware of slandering a seller on the internet because of an unacknowledged claim

Some customers resort to threatening a shop with a fake review on the internet if their complaint is not acknowledged. However, by doing so, they could cause themselves a lot of trouble.

“Slander posted on Facebook or Twitter can also be a criminal offence punishable by up to two years in prison.” Ondřej Preuss, Accessible Advocate

If you have spread false information about the seller, thereby jeopardising his business, he may subsequently seek an apology and compensation for damages. It also depends on the intensity of the defamation, the position of the person concerned or the number of people who saw the defamation. Even if the intensity of the defamation is not enough to be considered a criminal offence, it could be a misdemeanour, which carries a hefty fine.

Phone complaint rejected due to “mechanical damage”

In practice, it is often the case that a retailer rejects a claim on the grounds of “mechanical damage” without explaining exactly how it was caused.

We dealt with a similar case with a client who bought a mobile phone for approximately CZK 18,000. After about four months of use, the phone stopped responding to touch at the bottom of the display. The client claimed the phone from the retailer, but the retailer rejected the claim on the grounds that it was mechanical damage to the display.

The problem was that there was no specific damage listed in the claim report. The dealer only stated in general terms that “the defect was caused by improper handling”. In addition, the client provided photographs of the phone from before the claim, which showed no cracks or other damage.

After analyzing the case, we recommended the client to request a professional assessment of the defect and at the same time we invited the seller to provide more detailed reasons for rejecting the claim. In the letter, we pointed out, among other things, that if the defect manifests itself within the first 12 months of purchase, it is presumed to have existed at the time of receipt and it is up to the seller to prove otherwise.

The seller subsequently re-examined the claim and eventually replaced the phone with a new one.

Similar situations are not exceptional. The most common mistake consumers make is not to defend themselves further after a claim is rejected, even though the seller often cannot reliably substantiate its claim of “mechanical damage”.

Summary

If a seller rejects a claim, this does not automatically mean that the seller has made the right decision and that the consumer has no further defence. The seller is liable for defects that existed when the goods were taken over, and if the defect manifests itself within 12 months of purchase, the law presumes that it existed when the goods were taken over, unless the seller proves otherwise. Rejection of a claim must always be duly substantiated and the consumer has the right to request an explanation or a professional assessment of the defect. If he or she does not agree with the outcome of the complaint, he or she can turn to the Czech Trade Inspection Authority as part of an out-of-court settlement of a consumer dispute or claim his or her rights in court. In practice, it is often the case that a complaint is rejected without sufficient justification or on the basis of a general allegation of misuse of the product, so it is worth checking the situation and taking legal advice if necessary.