Hierarchy of Buyer's Remedies in Case of Lack of Conformity of the Goods

• Author: Piia Kalamees
• Position: Magister artium, Lecturer of Civil Law, University of Tartu
• Pages: 63-72

Piia Kalamees

Magister artium, Lecturer of Civil Law

University of Tartu

Hierarchy of Buyer’s Remedies

in Case of Lack of Conformity

of the Goods

1. Introduction

If a buyer has received from the seller goods that do not conform to the contract, the buyer has, as a rule,

recourse to several remedies. According to the Estonian Law of Obligations Act*1 (hereinafter referred to as

the LOA), if relevant prerequisites are fulf‌i lled, the buyer can have recourse to the following remedies:

– claim the performance of the contract through replacement or repair of the thing (LOA §222),

– withhold performance (LOA §111),

– claim compensation for damage (LOA §115),

– terminate the contract (LOA §116 (1)) or

– reduce the price (LOA §112).

The Estonian regulation of sales contracts has been largely founded on the United Nations Convention on

Contracts for the International Sale of Goods*2 (hereinafter referred to as the CISG), but also on the Ger-

man, Dutch, Swiss, Italian, etc. law provisions concerning contracts of sale of goods.*3 Directive 1999/44/

EC*4 (hereinafter referred to as the Consumer Sales Directive) has served as the basis regarding contracts

entered into with consumers.*5 At the same time, the provisions of the Consumer Sales Directive have not

always been adopted solely in regard to the regulations on consumer sales but often also in regard to the

provisions that are applied to all sales contracts.*6

This article focuses on the question of whether the buyer has (both in cases where the buyer is a con-

sumer and where he is not) the right to freely choose between the remedies available to him in the case of

defective goods or whether his choice is limited according to the LOA. This question is of interest, above

all, with regard to the attempts to harmonise the regulation of consumer rights in the European Union.

1 Võlaõigusseadus. – RT I 2001, 81, 487; RT I, 4.4. 2011, 3 (in Estonian).

2 RT II 1993, 21/22, 52.

3 116 SE I. Võlaõigusseadus (Law of Obligations Act. Draft). Available at http://web.riigikogu.ee/ems/saros-bin/mgetdoc?it

emid=991610001&login=proov&password=&system=ems&server=ragne11 (28.3.2010) (in Estonian).

4 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of con-

sumer goods and associated guarantees. – OJ L 171, 7.7.1999, pp. 12–16.

5 116 SE I. Law of Obligations Act. Draft (Note 3).

6 See, e.g., LOA §222 (demand for performance of contract as a remedy), §223 (fundamental breach of contract by the

seller).

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JURIDICA INTERNATIONAL XVIII/2011