Perhaps as a result of the crisis economica, and certainly due to the continuing proliferation of the internet, it has become more and more common for people to seek bargains online, often buying second-hand articles from their previous owner – someone hoping to make some money out of an unneeded or unwanted purchase or present.
Unsurprisingly, given the rise in volume of such transactions every year, there has been a corresponding increase in complaints to consumer associations relating to damaged or unusable products and so it is interesting to review exactly how Spanish law regulates these types of transactions. What happens if you buy something that doesn’t function as expected? Or if the product varies markedly from the original description? Does it matter if the seller is a business or an individual?
Firstly it must be said that the identity of the seller is of utmost importance, and it is necessary to distinguish those transactions that involve a purchase from a commercial enterprise and those where a product is bought from another individual.
Products bought from a company
The legislation that governs all of these types of transactions -whether a new or second-hand product is purchased – is contained in Real Decreto Legislativo 1/2007 – Ley General para la Defensa de los Consumidores y Usuarios (Consumer Protection Act).
Goods bought from a commercial enterprise must conform to their description or any demonstration of the product carried-out by the seller, be apt for the use typically associated with a product of it’s type and be capable of performing any particular function that the buyer has drawn attention to and which the seller has confirmed that the product is capable of performing.
If any of the above circumstances apply, the buyer may demand a repair of the item, substitution, a lowering of the price or the return of their money. Normally the return of the purchase monies would be appropriate when none of the other remedies can be offered or are not done so in a reasonable period of time. A return of money may not be appropriate for truly minor deviations from the description or performance of the product.
Products bought from another individual
In the case of a product purchased from an individual, then the Spanish Civil Code is where the governing law is to be found since the law does not consider the transaction to be carried-out by a consumer, but rather to be a transaction between to equal individuals. It should be noted however, in the case of a professional seller, the matter may be dealt with by the Consumer Protection Act.
This means that should there be any complaint relating to a product purchased second-hand from another individual, it must be made within six months from the date of purchase.
In addition, the remedies available are reduced to either product repair or reduction in price/return of the purchase monies i.e. the purchaser may not demand substitution.
It is often the case that many of the problems that arise in relation to these transactions is a result of some ‘hidden defect’ which affects the value or use of the product. Should a product with a hidden-defect be purchased in good faith by a purchaser who was unaware of it, then a remedy will exist.
The defect should not be apparent on a simple viewing of the product, and this defect should be sufficient to make the use of the product inappropriate for it’s intended use or reduce it’s value to the purchaser in such a way that the buyer would not have bought it if aware of the defect or would have offered less money.
The Civil Code provides that the seller will not be liable if the defect was manifest i.e. obvious or if the buyer happens to be an expert who ought to be aware of such defects Of course it must be possible to demonstrate that the defect occurred before the transaction took place.
Should the seller be shown to have been aware of the defect in the product yet not made the buyer aware, then in addition to a return of money/reduction in the purchase price the buyer may claim damages.
Finally, it is important to reiterate that the time limit for bringing an action under this area of the Civil Code is six months from the date of purchase.