As the end of the year approaches, it is typical for us to start analysing the year that is ending and building new year’s resolutions… it is also the time of the year when we begin to predict what could change with the arrival of the new year … Electricity/Gas will increase!? The prices of essential goods goods will increase!? And the fuel… will it increase too!?

What is certain at this point is that the new year will bring with it changes in terms of consumer rights to buy and sell digital goods, content and services. Decree-Law No. 84/2021, of 18 October, which transposes Directives (EU) 2019/771 and (EU) 2019/770 to domestic law, introduces relevant changes regarding warranty periods, but also introduces rules new in the provision of digital content and services as a result of the growth of electronic commerce registered in the last decade, which will come into force on January 1, 2022.

Major Changes:

1. Warranty period:

The professional shall be liable for any lack of conformity which becomes apparent within a maximum period of three (3) years from delivery of the good.
In contracts for the purchase and sale of used movable goods and by agreement between the parties, the three-year period may be reduced to eighteen (18) months, balance if the good is advertised as a reconditioned good, in which case the three (3) year warranty period applies.

2. Burden of Proof:

A lack of warranty that manifests itself in the first two (2) years from the date of delivery of the good is presumed to have existed at the date of delivery of that good. After this period has expired, it is up to the consumer to prove that the lack of conformity existed at the time of delivery of the good. In cases of an agreement to reduce the warranty on used movable goods, this period is one (1) year.

3. Right of rejection:

In cases where the lack of conformity becomes apparent within thirty (30) days of delivery of the good, the consumer may request immediate replacement of the good or termination of the contract.

4. Warranty period for immovable property:

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 ten (10) years in relation to failures of conformity concerning constructive or structural elements and five (5) years in relation to other failures of conformity.

5.  Digital Content and Services:

The great novelty of this law is the introduction of rules regarding the supply of digital content and services, providing for the right to contract termination when the producer fails to supply the digital content/services, as well as in the lack of conformity.

In case of nonconformity of digital content and services, the consumer is entitled, as with other types of goods, to have the goods brought into conformity, the price reduced and the contract terminated.

If the contract provides for only a single act of supply of digital content or services (for example, the purchase of the e-book), the trader is liable for lack of conformity for a period of two (2) years from the date of supply.

On the other hand, in contracts where a continuous supply is stipulated, the professional will be liable for any lack of conformity that becomes apparent during the term of the contract.

Castilho International Law Firm believes that these new rules are positive as well as mark an important milestone in consumer protection with regard to e-commerce in this new era where almost everything can be purchased at the distance of a click.