- Statutory provisions on the sale of goods do not make a distinction between B2B contracts and sales contracts vis-à-vis consumers. However, special provisions are set forth by the law in order to protect the consumer and they cannot be restricted or ruled out by mutual agreement before notice of the defect.
- On the contrary, B2B contracts may stipulate that warranty rights of the purchaser are extended, limited or excluded.
- Under statutory law, general terms and conditions of sale/purchase must be known by the parties or at least made available upon the execution of the contract. In any case, GTCs providing for limitation: i) of liability or ii) of the right to raise claims are ineffective unless expressly accepted in writing.
The seller is bound to guarantee that the goods are free from material defects. A material defect exists when the goods do not have the promised qualities or if the qualities have not been specified in the sales contract in that the goods have to be fit for their use. No guarantee is due when upon the execution of the contract the purchaser was aware of the defects of the goods or the defects could be easily detected by the purchaser unless, in this case, the seller expressly declared that goods were free from defects.
A legal defect (evizione) exists when third parties can assert rights with respect to the goods against the purchaser.
Rights and Remedies of Purchaser
- Withdrawal from the contract/reduction of price accordingly to the reduced value of the goods.
- Claim for direct and indirect damages, unless the seller can prove that it was unaware of the defectiveness of the goods.
- Consumers are entitled to claim for repair or replacement of defective goods free of costs irrespective of seller’s fault.
- In case of B2B contracts, subsequent performance of the seller may be agreed upon by the parties.
Right to Choose Subsequent Performance
The consumer may at its choice seek the withdrawal from the contract or the adequate reduction of the sale price if repair/replacement: i) is too onerous or impossible or ii) is not prompt or iii) caused significant troubles for the consumer.
Costs of Subsequent Performance
- In B2B contracts parties are free to agree on the allocation of repair/replacement costs.
- Consumer statutory law provides for the seller to bear all costs for repair/replacement.
Conditions for Claims for Damages
- Claims for damages are subject to the following conditions:
- Breach of contractual obligation by the seller (i.e. material or legal defects of the goods);
- Fault, i.e. the seller has negligently not detected or intentionally hidden the defect from the purchaser
- Root cause of damage
- Consumer rights may not be restricted in contracts vis-à-vis consumers.
- In individually negotiated B2B contracts, however, broad restrictions on liability are permitted. In any case, liability for acting with intent cannot be limited in advance.
Extent of Claims for Damages/Limitation of Liability
- In the event of total deprivation of the purchased goods (evizione) the seller is bound, irrespective of its fault, to compensate the damage and to reimburse the purchaser all expenses incurred; whereas in the event of defectiveness of the goods, the seller must compensate the purchaser for direct and indirect damages, unless it can prove that it was unaware of the defects and without fault.
- The extent of liability may not be restricted to the detriment of the consumer in contracts vis-à-vis consumers.
- Limitations of seller’s liability and of purchaser’s rights to claim defects in the goods in GTCs vis-à-vis companies are ineffective unless expressly accepted by the purchaser in writing. Such limitations may be stipulated in individually negotiated B2B contracts.
Withdrawal from Sales Contract
- The purchaser is entitled to choose between reduction of the sale price or withdrawal from the contract although withdrawal is not permitted for minor defects.
- Consumer’s right to withdraw from the contract may not be restricted in sales contracts.
- The withdrawal right may be restricted in individually negotiated B2B contracts and may be stipulated in GTCs but in this case the restriction is effective only if expressly accepted in writing by the purchaser.
Limitation Period for Claims for Defects
- Under statutory law, the deadline for reporting the defects is eight days from discovery. Timely reporting is not necessary if the seller has acknowledged the defects or has concealed their existence with intent. The limitation period for claims for defects is one year from delivery of the goods.
- In sales contracts regarding movable goods, the seller may also guarantee the proper functioning of the goods for a fixed period of time. If such guarantee is given, the purchaser is bound to report the malfunction within thirty days from discovery and the limitation period is six months from discovery.
- Reduction/extension of the limitation period for reporting defects is allowed in individually negotiated B2B contracts. Reduction / extension of the limitation period for claims is not allowed.
Purchaser’s Obligation to Inspect Goods and Report Defects in B2B Contracts
- Statutory law does not provide for any purchaser’s obligation to inspect the goods.
- In B2B contracts an obligation to inspect goods can be stipulated and regulated by the parties.