Summary

If a seller delivers goods to the buyer that are not in conformity with the contract, the buyer can resort to various legal remedies. With regard to the sale of consumer goods, the law of the EU Member States has been harmonized through Directive 199/44/EC. This directive has been transposed into Estonian law in the Law of Obligations Act, which, among other provisions, provides for the same legal remedies. The Directive does not regulate compensation for damage.

Upon breach of a contract, guarantee liability is applied in accordance with the Law of Obligations Act, which means that the non-performance of a debtor is excused only if it is caused by force majeure (Subsection 103 (1)). With regard to sales contracts, in the legal literature in Estonia, it has been suggested that a seller who delivers non-conforming goods to a buyer is not excused, even in the case of force majeure, which amounts in essence to the strict liability of the seller. The authors of this article believe that this understanding may arise from the failure of Estonian legislators to take into account the sixth recital to Directive 1999/44 upon transposition into national law, by which the principles of national law relating to contractual liability are excluded from the scope of the Directive.

In this article, the authors demonstrate that imposing strict liability on a seller can under circumstances lead to an unjust result. To do so, the authors compare the standard of liability of the seller upon delivery of a non-conforming moveable as set out in the Estonian Law of Obligations Act, the German Civil Code (BGB) and the UN Convention on Contracts for the International Sale of Goods (CISG, since the latter two were used as the main sources for the regulation of sales contracts in the Law of Obligations Act. A case of the German Supreme Court is also examined in this comparison.