Physical defects

Pursuant to the  Civil Code, a physical defect means that an item sold does not comply with the contract. In particular, an item does not comply with the contract if: a) it has no properties which an item of this kind should have, bearing in mind the purpose stated in the contract or ensuing from the circumstances or intended use: b) it has no properties declared by the seller, e.g. by presenting a sample or a model; c) it is unfit for the intended purpose disclosed by the buyer to the seller upon concluding the contract, as long as the seller has not objected to such purpose; d) it is incomplete at the time of issuing it to the buyer.


A sold item has a physical defect also if it is incorrectly installed or commissioned, as long as these activities are carried out by the seller or a third party controlled by the seller, or by the buyer acting in accordance with a manual received from the seller.


As regards “non-compliance with the contract”: the “contract” does not necessarily mean a written text. Conclusion of a sales contract does not need to be in writing. One must also be aware that a contract consists not only of explicit statements of intent made by the parties, but encompasses the entire agreement between the seller and the buyer, the content of which may also be context-sensitive.


An example: A person who bought an electric kettle has the right to expect that the device will actually boil water. If the kettle heats water up to only 40°C, then a physical defect exists. The seller cannot claim that they have never assured the buyer that the kettle would boil water, because boiling water is what electric kettles normally do. Unless any special arrangements have been made, the buyer has the right to expect that the item bought by them will have all standard functions.


An example: The buyer was looking for a spare part for a vehicle of a specific make (and notified the seller thereof). The seller offered such a part. After the transaction it turned out that the part does not fit. In such a case the seller cannot claim that the part itself is fully functional and therefore has no physical defects. Although in the colloquial sense the part is not defective (it would work very well in a car of a different make), the buyer specifically explained the intended use of that part. In this particular case, one of the elements of the sales contract is the seller’s assurance of the part’s compatibility with the buyer’s car. The fact that such assurance has never been made in writing is irrelevant.


In the case of consumer sales the notion of an item’s non-compliance with the contract is  extended.