Conformity of Goods and Digital Content/Digital Services

Esther Arroyo Amayuelas & Sergio Cámara Lapuente (dirs.), El Derecho privado en el nuevo paradigma digital, Barcelona-Madrid, Marcial Pons, 2020.

29 Pages Posted: 6 Mar 2020 Last revised: 11 May 2020

Date Written: January 20, 2020

Abstract

This paper considers the role of legal conformity requirements in consumer sales contracts, distinguishing between different levels of conformity based on subjective and objective criteria. It then critiques the conformity requirements in two recent EU Directives on consumer sales, and the supply of digital content and digital services respectively. It is critical of the maximum harmonisation standard of these directives and the inflexibility this imposes, as well as the lack of creativity in developing modern consumer-specific rules. It questions the separation into subjective and objective conformity requirements and argues that there is no room for subjective conformity requirements based on party agreement in most consumer contracts. It then critically analyses the conformity rules in both directives and discusses ambiguities, open questions, as well as positive aspects (for instance, the inclusion of new criteria such as compatibility, functionality and interoperability). It highlights the potential role of the "reasonable expectations" criterion as a way of mitigating the effects of the maximum harmonisation nature of the directives. Finally, it highlights the insufficient account that has been taken of sustainability in the development of these directives, which seems due to a desire to prioritise maximum harmonisation rather than modern, creative consumer law rules.

Keywords: consumer law, conformity, maximum harmonisation, quality, fitness for purpose, goods, digital content, digital services

JEL Classification: K12, K29

Suggested Citation

Twigg-Flesner, Christian, Conformity of Goods and Digital Content/Digital Services (January 20, 2020). Esther Arroyo Amayuelas & Sergio Cámara Lapuente (dirs.), El Derecho privado en el nuevo paradigma digital, Barcelona-Madrid, Marcial Pons, 2020.. Available at SSRN: https://ssrn.com/abstract=3526228

Christian Twigg-Flesner (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry CV4 7AL, CV4 7AL
United Kingdom

HOME PAGE: http://https://www2.warwick.ac.uk/fac/soc/law/people/Christian_Twigg-Flesner

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