This master´s thesis addresses the principle of proportionality with regard to remedies for non-conformity. I derived from sales contract as legislated in Slovenian Code of obligations and the Directive 1999/44/EC of the European Parliament and the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.
There is first an introduction explaining the principle of proportionality and its integration into the Slovenian legal order. In the following part of thesis, I discussed the presumptions for remedies for non-conformity. My attempt was to research how the proportionality principle is reflected in particular in the relationship between the rights and obligations of the contract parties. Special attention is given to claims arising out of liability and requirements relating judicial application of claims and compensation for the damage.
The emphasis of the thesis is given to the judgment of the ECJ in the case of Weber and Putz. By analyzing the judgement, I focused on consumers’ right to have the goods brought into conformity free of charge by repair or replacement in accordance with paragraph 3 of the Directive. The ECJ obliged the seller to bear the cost of removing goods, which are not in conformity. Pursuant to the ECJ, the disproportion to which Article 3 of the Consumer Sales Directive refers has a relative and not an absolute character. Consequently, if there is only one remedy possible, a seller can not refuse a consumer’s remedy only because its performance costs are high.
In conclusion, I observed whether ruling delivers sufficient protection to consumers and how decision affects the German and Slovenian legal system. I was also interested if decision contributes to further harmonization of the Member States’ legal systems.
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