Decree-Law No. 84/2021 of 18 October was published today, which regulates consumer rights in the purchase and sale of movable and immovable goods, digital content and services, transposing Directives (EU) 2019/771 and (EU) ) 2019/770.
This diploma essentially aims to (i) reinforce the rights of consumers in the purchase and sale of consumer goods, and (ii) establish the consumer protection regime in contracts for the supply of digital content or services.
This regime applies to:
• Purchase and sale contracts entered into between consumers and professionals;
• Goods supplied under a work contract or other provision of services, as well as the leasing of goods;
• Digital content or services that are embedded in, or interconnected with, goods and are provided with the goods pursuant to a purchase and sale agreement;
• contracts for the provision of digital content or services.
This regime does not apply to electronic communications services, healthcare services, online gaming and betting, financial services, among others described in the diploma.
A. Buying and selling goods
The consumer is entitled to have the goods purchased comply with legal compliance requirements. In this way, the goods that, namely:
• Correspond to the description, type, quantity and quality and have the functionality, compatibility, interoperability and other characteristics provided for in the purchase and sale contract;
• Are suitable for any specific purpose for which the consumer intends them, in accordance with what has been previously agreed between the parties;
• Are suitable for the use for which goods of the same nature are intended;
• Correspond to the description and have the qualities of the sample or model that the professional has presented to the consumer before the contract is signed, whenever applicable;
• In the case of goods with digital elements, updates, including security, necessary to bring the goods into compliance must also be ensured.
Legal warranty periods
• The professional is responsible for any lack of conformity that manifests itself within 3 years (previously 2 years) from the delivery of the good;
• In the case of goods with digital elements, the professional is responsible for any non-compliance that occurs or manifests itself:
a) Within 3 years from the date the goods with digital elements were delivered, when the contract stipulates a single act of supplying the digital content or service or when the contract stipulates the continuous supply of the digital content or service during a period up to 3 years; or
b) During the contract period, when it stipulates the continuous supply of the digital content or service for a period exceeding 3 years.
• The consumer can report non-compliance by letter, email, or any other means that can be proven.
In case of non-conformity of the purchased good, the consumer has the right to have the conformity restored, by repairing or replacing the good; proportional price reduction; or the termination of the contract.
B. Purchase and sale of real estate:
The consumer has the right that the real estate delivered comply with the purchase and sale contract and that they present characteristics of quality, safety, habitability, environmental protection and functionality in order to ensure their suitability for the intended use. intended for a technically and economically reasonable lifetime.
Legal warranty periods
The professional is liable to the consumer for any lack of conformity that exists when the immovable property is delivered to him and manifests itself within:
a) 10 years, in relation to non-conformities related to structural construction elements (previously it was always 5 years). The Government will approve an exemplary list of structural elements through an Ordinance;
b) 5 years, in relation to other non-compliances.
The consumer is entitled to replacement, free of charge, by means of repair or replacement, proportional reduction in price or termination of the contract.
C. Provision of digital content and services:
They understand as "Digital Service":
• A service that allows the consumer to create, process, store or access data in digital format; or
• A service that allows sharing or any other interaction with data in digital format uploaded or created by the consumer or other users of that service.
Digital content or services that:
• Correspond to the description, quantity and quality and have the functionality, compatibility, interoperability and other characteristics provided for in the contract;
• They are suitable for any specific purpose for which the consumer intends them and which has been communicated to the professional, at the latest when the contract is signed, and to which the professional has expressed agreement;
• Are suitable for the use for which digital content or services of the same type are intended;
• They conform to the test versions or previews made available by the professional before the contract is signed.
In case of dispute, it is up to the professional to prove that he has provided the digital content and services.
Consumer rights in case of non-supply or non-compliance
Non-Supply: In case of non-supply, the consumer has the right to request the professional to supply it. The consumer has the right to terminate the contract if, after being asked to comply, the professional does not provide the content/service.
There is a place for immediate termination of the contract whenever: a) The professional has declared, or clearly results from the circumstances, that he will not provide the digital content or services; or b) The consumer loses interest in carrying out the service, considering the existence of a prior agreement between the parties on the essentiality of the deadline for compliance.
Lack of compliance: the consumer is entitled to redress the compliance; proportional price reduction; or the termination of the contract.
D. Commercial warranty
The voluntary guarantee is maintained, although with increased information obligations, and is now called a “commercial guarantee”.
D. Entry into force and application in time
This diploma enters into force on January 1, 2022.
The regime established in this diploma in terms of contracts for the purchase and sale of movable property and immovable property applies to contracts entered into after its entry into force.
The provisions of this diploma related to contracts for the provision of digital content and services apply:
a) to contracts entered into after its entry into force;
b) contracts for an indefinite period or for a fixed term entered into before their entry into force that provide for the continuous supply or a series of individual acts of supply of digital content or services, only with regard to the digital content or services that are provided from the date of entry into force of this diploma.
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