Consumer complaint

In this text we will explain what a consumer reclamation (complaint) is, when and how you can state it, all in the light of the buyer-consumer and seller relationship. This matter is regulated primarily by the Law on Consumer Protection, while the procedure of consumer rights protection before the court is regulated by the provisions of the Law on Civil Procedure.

Who is the consumer?

It is clear that the provisions of the Law on Consumer Protection protect consumer rights. In that sense, a consumer is a person who buys goods or services on the market but not for his business or other commercial activity. Therefore, the right to protection in terms of Law on Consumer Protection have all persons who are consumers in this sense. So, a consumer is any person who buys various devices, clothes, furniture etc. for his own needs.

What is a complaint?

It often happens that the purchased goods have a certain defect. For example, the device can stop working after only a few days of use, clothes can be torn after the first wearing etc. In that case, the buyer has the right to complain to the seller, i.e. to point out the defects of the goods and to use some of the legally prescribed rights, which will be discussed below.

Reclamation, therefore, is a complaint of the buyer which is stated for the reasons prescribed by law and in the manner prescribed by law. If the purchased goods are not in accordance with the contract, which means that they have certain defect, the buyer can complain to the seller by pointing out the fact that there is a defect and demand replacement of goods, price reduction, damages, and even termination of sale contract, all depending on whether the legally prescribed conditions are fulfilled.

We emphasize that the seller is obliged to clearly and in understandable way inform the consumer about the manner of filing a complaint, especially about the place of receipt and how he is going to deal with it, as well as the conditions relating to the procedure of consumer rights protection before the court if the goods have flaws. The seller must display all of this in a visible place in the store, and he is also obliged to ensure that the person authorized to receive complaints is present in the store during working hours.

When the goods are in accordance with the contract?

After it has been explained who has the right to complain in terms of the Law on Consumer Protection, it is necessary to explain when that right can be used. The precondition for filing a reclamation is that the purchased goods are not in accordance with the contract because they have some defect, all because the law prescribes the obligation of the seller to deliver the goods to the consumer that are in accordance with the contract.

Thus, the goods are not in accordance with the contract if it:

• does not correspond to the description given by the seller and if it does not have the properties of the goods shown by the seller to the consumer as a sample or a model
• does not have the properties required for the particular usage for which the consumer buys it, which was known to the seller or must have been known to him at the time of the conclusion of the contract
• does not have the properties required for regular usage of goods of the same type
• quality and function of goods do not correspond to what is usual for the goods of the same type and what the consumer can reasonably expect because of the nature of the goods and public promises about the special properties of goods given by sellers, manufacturers or their representatives, especially if the promise is made through advertising or on the packaging of the goods

When is the seller liable for non-compliance of the goods?

Non-compliance of goods is a precondition for the responsibility of the seller. However, non-compliance itself does not mean that the seller will be liable to the consumer. Accordingly, the law stipulates that the seller is liable for it in the following situations:

1. if the non-compliance existed at the time of the transfer of risk to the consumer, regardless of whether the seller knew about it
2. if the non-compliance occurred after the transfer of risk to the consumer, but originates from a cause that existed before the transfer of risk to the consumer
3. if the consumer could easily notice the non-compliance, but the seller stated that the goods are in accordance with the contract
4. if the non-compliance is caused by improper packaging, improper installation or assembly performed by the seller or a person under his supervision, as well as when improper installation or assembly of goods is a consequence of a mistake in the instructions given by the seller to the consumer for independent installation or assembly

As the law links the first two cases to the moment of risk transfer, it is necessary to explain what that means.

In this case, we are talking about risk of accidental ruin or damage of the goods. Accidental ruin or damage means that the destruction or damage of goods has occurred, but such destruction or damage did not occur as a result of the behavior of the seller or consumer, or depends on them in any way. However, someone has to be liable even when the goods accidentally fail or are accidentally damaged, so whether the damage will burden the consumer or the seller depends on time it has been occurred.

To the moment of handing over the goods to the consumer or to a third party determined by the consumer, who is not a carrier or shipper, the seller is the one affected by accidental ruin or damage to the goods, i.e. the consumer will not suffer in any way. On the other hand, after this legally prescribed moment, i.e. after handing over the goods to the consumer or a third party determined by the consumer, who is not the carrier or shipper, the consumer bears the risk, i.e. the fact that the thing is accidentally damaged or failed does not affect the seller.

All of this can be explained on a simple example. Suppose a consumer has purchased a TV set which the seller is obligated by contract to deliver to his home address. Thus, the seller hands over the TV to the carrier, all in order to fulfill his contractual obligation, which is the delivery of the goods. However, the TV was damaged during transport. It follows from the above legal rules that the seller is liable for damage, so the consumer can ask him to give him a new TV or to repair the damaged one. On the other hand, if the consumer took the TV in the seller’s shop, drove it to his house and determined that the device was damaged during transport, there is no reason to ask for a replacement or repair from the seller, because from the moment of delivery the risk affects the consumer.

However, it can happen that after the delivery, the consumer terminated the contract or asked for a replacement of the goods, all due to non-compliance. In that case, the risk of accidental ruin or damage to the goods does not transfer to the consumer.

On the other hand, the risk of accidental ruin or damage to the goods transfers to the consumer even when the delivery of the goods has not occurred, if the consumer or a third party designated by the consumer other than the carrier or shipper refuses to accept the goods without any good reason.

The liability of the employer regulated in this way cannot be limited or excluded in a way that violates the rights of consumers, i.e. contrary to the provisions of the Law on Consumer Protection.

When the seller is not liable for non-compliance of the goods?

The fact that the Law on Consumer Protection is intended to protect consumers does not mean that sellers should remain unprotected. For this reason, the law prescribes when the seller is not responsible, although the goods have some flaws:

1. at the time of concluding the contract, the consumer was aware or could not remain unaware that the goods were not in accordance with the contract, so the consumer knew that he is buying a defective product
2. the cause of non-compliance is in the material provided by the consumer

When can a consumer request the elimination of non-compliance?

In the above mentioned situations the consumer can use his rights prescribed by law only if he has informed the seller that goods have some defect and, due to that, they are not in accordance to the contract.

Also, it is necessary that the flaw occurred within 2 years from the day of transfer of risk to the consumer, but there is a possibility to agree on a shorter period in which the seller is responsible for flaws of goods, if the sold goods are not new. However, even then, the stated deadline cannot be shorter than one year.

So, from the moment when the goods are given to the consumer, the deadline in which the consumer can to point out to the seller that the purchased item has some defect begins to run.

Therefore, the consumer’s request to the seller at terms of eliminating non-compliance is conditioned in many ways, i.e. it is necessary to meet the following conditions:

• the purchased goods are not in accordance with the contract (they have dome defect/flaw)
• conditions for one of four statutory situations in which the seller is liable for non-compliance are fulfilled
• the conditions for releasing the seller from liability are not fulfilled
• non-compliance occurred within 2 years from the transfer of risk to the consumer (or within the agreed shorter period in the case of sale of used goods, but not less than one year)
• the consumer has informed the seller about the non-compliance

What rights does the consumer have if the goods he has bought have some defect?

If the non-compliance occurred within 6 months from the day of transfer of risk to the consumer, i.e. the day when the seller give him the goods, the consumer has the right to choose between one of the following options:

1. replacement of non-compliant goods for the same goods, but without defect
2. repair of non-compliant goods (only with the exclusive consent of the consumer)
3. price reduction
4. contract termination

However, if the non-compliance occurs after 6 months from the transfer of risk to the consumer, the consumer has no right to choose. In that case, the consumer must first contact the seller and ask him to repair it or to give him goods without flaws, of course for free. The seller is obliged to perform the repair or replacement within a reasonable time, without significant inconvenience to the consumer and with his consent, all taking into account the nature of the goods and the purpose for which the consumer bought it.

Only if the elimination of non-conformity by repair or replacement is not possible, the consumer has the right to request an appropriate price reduction or to declare the termination of the contract. However, if the non-compliance is insignificant, the consumer has no right to terminate the contract.

The law explicitly prescribes when repair and replacement are not possible. In that case the consumer must decide between reducing the price and terminating the contract. The elimination of non-compliance by repair or replacement is not possible if:

– Non-compliance cannot be removed by repair or replacement at all or within a reasonable time

– The right to seek repair or replacement cannot be used, i.e. the seller has not performed the repair or replacement within a reasonable time

– Repair or replacement cannot be carried out without significant inconvenience to the consumer due to the nature of the goods and their purpose

– Elimination of defect by repair or replacement is a disproportionate burden for the seller, which means that the repair or replacement compared to the reduction of the price or termination of the contract creates excessive costs for the seller, all taking into account the value of the goods without the flaw, the importance of compliance in a particular case and the answer to the question whether compliance can be removed without significant inconvenience to the consumer

In each of these situations, all costs of resolving the non-compliance are borne by the seller. This especially refers to the costs of labor, materials, collection and delivery, but the above also applies to all other costs that are necessary for the flaws removal.

These rights do not affect the consumer’s right to claim damages from the seller which is caused by the non-conformity of the goods, all in accordance with the general rules on liability for damages. This means that the consumer may, for example, terminate the contract and, at the same time, seek compensation for the damage he suffered (for example, the purchased washing machine destroyed his clothes, so he can seek compensation in court).

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Complaint decision-making procedure

When the consumer uses his right to complain, the seller is obliged to give him a written confirmation of reception of the complaint, i.e. to send him an e-mail or letter and in that way inform consumer that he has received his complaint and under which number the complaint is registered in his system. If the complaint is submitted electronically, the confirmation will be issued in that way too.

The seller is obliged to keep the declared complaint for at least 2 years from the day of its submission.

After receiving the complaint, the seller is obliged to decide within 8 days of its receipt whether it accepts the consumer’s request.

Positive response to the reclamation

The seller can accept the consumer’s request, in whole or in part, when we say that the complaint has been accepted, i.e. the seller has responded positively to it. This means that the seller admits that a defect, which was pointed out to him by the consumer, exists. In that case, the seller is obliged to give the consumer a suggestion for eliminating the non-compliance. If the consumer agrees with the seller’s proposal, the seller is obliged to take the measures they agreed on.

On that occasion, the seller and the consumer will agree on the deadline within which the seller is obliged to eliminate the defect. This deadline cannot be longer than 15 days from the day of filing the complaint, or 30 days, if it is technical goods and furniture. It can be extended, at the request of the seller, but only if seller is not able to eliminate the flaw within the agreed deadline, all due to objective reasons. This right seller can use only once.

Negative response to the reclamation

The seller who considers that the goods are in accordance with the contract, i.e. that the complaint is unfounded, gives a negative response to the complaint. So, he rejects the consumer’s request. In that case, the seller is not obliged to state the reasons for rejection or to explain his answer in any way. Therefore, the obligation of the seller is to respond to the complaint within the legally prescribed period, and it is up to him to choose whether to state the reasons for his decision or not.

Consumer and seller dispute

Consumer disputes are regulated by the provisions of the Law on Civil Procedure as a special type of litigation. Therefore, the Law on Civil Procedure prescribes special rules that are applied in consumer disputes, and on those issues that are not explicitly regulated, the general rules from this Law are relevant.

The consumer initiates procedure by filing a lawsuit in the competent court. The consumer can file a lawsuit if:

• The seller did not respond to the complaint within 8 days from the date of receipt of the complaint
• The seller gave a negative answer to the complaint (he rejected the consumer’s request)
• Another right that the consumer has in accordance with the Law on Costumer Protection has been violated

The consumer can file a lawsuit both in the court in whose territory the seller’s residence is located, and in the court in whose territory he, as a consumer, has a permanent or temporary residence.

It is important to emphasize that consumer is not obligated to pay fee for this lawsuit, but only if the value of the subject of the dispute is not higher than 500,000.00 dinars.

Consumer disputes are urgent in nature, so the lawsuit is not submitted to the seller as a defendant for response, but it will be given to him together with the summons for the main hearing. The law stipulates that the first hearing must be scheduled and held within 30 days from the day of receipt of the lawsuit in court. However, in practice it is different – the fact is that the courts are burdened with a large number of cases, so it rarely happens that the first hearing is actually scheduled within the prescribed deadline. In that sense, consumers wait up to five months from the filing of the lawsuit to summon for the first hearing.

The law stipulates that in consumer disputes, the court announces the verdict immediately after the conclusion of the main hearing. In practice, this is not the case, so the verdict is delivered to the consumer’s home address. A complaint against the verdict can be submitted within 8 days from the day of publication of the verdict or the day of delivery, if the verdict was delivered to a party, which is, as stated, the practice of the courts. In this case, the verdict in a consumer dispute can be challenged only due to a significant violation of the provisions of civil procedure or misapplication of substantive law, but not due to wrongly or incompletely established facts.

Misdemeanor liability of the seller

The Law on Civil Procedure prescribes in which situations the seller commits an offense related to the reclamation filed by the buyer-consumer.

The seller is committing an offense if:

– fails to display a visible notice at the store about the manner and place of receipt of complaints or fails to ensure the presence of a person authorized to receive complaints during working hours at the place designated for receipt

– does not give a written confirmation to the consumer or does not confirm the receipt of the complaint electronically

– does not keep reclamations or does not keep records of received reclamations

– does not respond to the consumer to the complaint in the manner and within the time prescribed by law

– the accepted request from the consumer’s complaint is not resolved in the manner prescribed by law

– does not inform the consumer about the extension of the deadline for resolving the complaint

– does not establish a separate and free telephone line and does not form a commission for resolving complaints (the above is valid only for traders who provide services of general economic interest)

The following fines are prescribed for the stated violations:

• from 300,000.00 to 2,000,000.00 dinars if the seller is a legal entity + from 50,000.00 to 150,000.00 dinars for the responsible person in that legal entity
• from 50,000.00 to 500,000.00 if the seller is an entrepreneur

 

Date: 05.06.2020.