Decree-Law no. 84/2021, of October 18, was published today in Diário da República no. 202/2021, Series I, which "regulates consumer rights in the purchase and sale of digital goods, content and services, transposing Directives (EU) 2019/771 and (EU) 2019/770", and which will enter into force on January 1, 2022.
The purpose of this Decree-Law is to strengthen consumer rights in the purchase and sale of consumer goods, and the consumer protection regime in contracts for the supply of digital content or services, as well as the regime applicable to the purchase and sale of immovable property in the event of a lack of conformity, the liability of the producer, online market providers and the sanctioning regime (see art. 1).
As for its scope of application, among others, we have the purchase and sale contracts concluded between consumers and professionals and the supply within the scope of works contracts or other services (see art. 3), leaving out of its scope the purchases and sales by way of seizure or other forms of judicial execution / through public authority, and the purchase and sale of animals (see art. 4).
This law identifies, among other things, the subjective and objective requirements for the conformity of goods to which the goods are attached and whose non-compliance entails the legal consequences set out therein, as well as the rights and ways of exercising them. This, both in the context of purchase and sale contracts (Chapter II) and in the context of the supply of digital content and services (Chapter III), fills a gap in the legal system in this area and thus brings the applicable regime into line with that in force in the European Union.
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Some highlights:
As far as liability for the lack of conformity of movable goods is concerned, this will fall on the professional as long as it manifests itself within three years of delivery of the goods, which can be reduced to 18 months if the goods are reconditioned, and this must be mentioned on the invoice. In other words, the deadline has been extended by 1/3 of the amount legally imposed by the legislation in force.
Notwithstanding this extension of time, Article 13 states that, as far as the burden of proof is concerned, the fact that the goods are not in conformity is presumed to have existed on the date of delivery of the goods within two years of that date, or one year after delivery in the case of reconditioned goods, which coincides with the time limits in force at the time.
After these time limits have elapsed, and up to the time limits being extended, the consumer bears the burden of proving that the lack of conformity existed on the date of delivery of the goods (see articles 12 and 13).
This is the reality underlying the extension of the deadlines which, strictly speaking, and in our opinion, will have little practical effect, except on rare occasions, due to the difficulty of proving this inherent in the reversal of the burden which will fall on the consumer after the two and one year deadlines, respectively.
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As for the consumer's rights, they may include (as is already the case) remedying the lack of conformity by repairing or replacing the goods, proportionally reducing the price or terminating the contract, and they must be exercised within two years of the date of communication of the lack of conformity, taking into account the criteria for suspending the time limit.
However, unlike today, there is now a hierarchy in terms of the choice of options and the requirements for their enforceability.
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If there is a lack of conformity within 30 days of delivery, the consumer can immediately demand that the goods be replaced or the contract terminated (see art. 16).
We would also like to highlight the fact that, in the event of a repair, this must, as a rule, take place within 30 days, with the movable good benefiting from an automatic additional guarantee period of six months for each repair, up to a limit of four
repairs. (see art. 18).
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We would also highlight the fact that the producer is obliged to provide the parts needed to repair the goods for a period of 10 years after placing the last unit of the good on the market.
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With regard to the purchase and sale of real estate, the professional will be liable to the consumer for lack of conformity (in accordance with the provisions of Article 22) for 10 years after delivery of the goods (i.e. five years longer than the current regime), with regard to structural elements, and for 5 years in the case of other lacks of conformity.
If this happens, the consumer will have the right to repair, replacement, proportional reduction of the price or termination of the contract (unless it is an abuse of rights), rights which must be exercised within three years of notifying the lack of conformity.
(see arts. 22 to 25).
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Finally, please note that
a) The Decree-Law enters into force on January 1, 2022;
b) With the entry into force of this Decree-Law, Decree-Law no. 67/2003, of April 8, and articles 9-B and 9-C of Law no. 24/96, of July 31, are repealed;
c) Any clauses or agreements which exclude or limit the consumer rights provided for in the aforementioned Decree-Law are null and void (see art. 51);
d) The legislative changes apply only to contracts entered into after their entry into force (i.e. January 1, 2022), with the exception of digital content or services that are supplied as of January 1, 2022 under contracts for the supply of digital content and services entered into previously (see art. 55); and that
e) According to Article 52(4), "The rights provided for in this Decree-Law are without prejudice to the consumer's right to be compensated under general terms", thus allowing for possible cumulation with amounts due as compensation for damage caused as a result of the breach of legally provided obligations.
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Final note:
All the articles referred to refer to Decree-Law 84/2021 of October 18.
References:
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Definitions that are (more) relevant here:
Professional: "a natural or legal person, whether public or private, who acts, including through any other person in his name or on his behalf, for purposes relating to his trade, business, craft or profession, in respect of contracts covered by this Decree-Law" (Art. 2(o));
Consumer: "a natural person who, with regard to contracts covered by this Decree-Law, is acting for purposes which are outside the scope of their commercial, industrial, craft or professional activity" (Art. 2(g));
Immovable property: "urban buildings for residential purposes, understood as any building incorporated into the ground, with the land that serves as a patio, and any movable item materially attached to the building on a permanent basis being an integral part of it" (cf. article 2(d));
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