Sample complaint form for download: LINK

CONSUMER PRODUCT COMPLAINT UNDER THE LAW

BASIS FOR THE COMPLAINT

• Non-conformity of the goods with the contract
• Statutory warranty (rękojmia)

DATE OF CONCLUSION OF THE SALES CONTRACT

• Applicable to Sales Contracts concluded up to 24 December 2014
• Applicable to Sales Contracts concluded on or after 25 December 2014

LEGAL BASIS

For contracts concluded up to 24 December 2014

The Act of 27 July 2002 on Specific Terms and Conditions of Consumer Sales and Amendments to the Civil Code (Journal of Laws No. 141, item 1176, as amended), together with other generally applicable legal provisions.

For contracts concluded on or after 25 December 2014

The Civil Code Act of 23 April 1964 (Journal of Laws No. 16, item 93, as amended), together with other generally applicable legal provisions.

BASIC GROUNDS FOR SELLER LIABILITY

Non-conformity of goods with the contract

The Seller is liable to the Customer if the Product does not conform to the Sales Contract at the time it is delivered.

Where the characteristics of a Product have been individually agreed upon, the Product is presumed to conform to the Sales Contract if it matches the description provided by the Seller or has the characteristics of a sample or model shown to the Customer, and if it is suitable for the purpose specified by the Customer when concluding the Sales Contract, unless the Seller has raised objections regarding that intended use.

In cases not covered above, the Product is presumed to conform to the Sales Contract if it is suitable for the purposes for which products of that type are normally used and its characteristics correspond to those typical of products of that type. The same presumption applies if the Product meets the reasonable expectations associated with products of that type, based on public statements made by the Seller, manufacturer or its representative. In particular, statements made on product labels or in advertising concerning the Product's characteristics, including the period for which those characteristics are expected to be maintained, shall be taken into account.

Statements made by a person who places the Product on the domestic market in the course of their business, or by a person who presents themselves as the manufacturer by placing their name, trademark or other distinguishing mark on the Product, shall be treated as equivalent to statements made by the manufacturer.

A Product is also considered non-conforming with the Sales Contract if it has been incorrectly installed or commissioned, provided that these activities were performed under the Sales Contract by the Seller or a person for whom the Seller is responsible, or by the Customer in accordance with instructions received at the time of sale.

Exemption of the Seller from liability

The Seller is not liable for the Product's non-conformity with the Sales Contract if the Customer knew, or reasonably should have known, about the non-conformity.

The Seller is not bound by the statement referred to in Article 4 if the Seller proves that they were unaware of the statement and could not reasonably have been expected to know about it, that the statement could not have influenced the Customer's decision to conclude the contract, or that the statement was corrected before the contract was concluded.

Statutory warranty (rękojmia)

The Seller is liable to the Customer if the Product sold has a physical or legal defect.

Physical defects

The Seller is liable under the statutory warranty for physical defects that existed when the risk passed to the Customer or that resulted from a cause inherent in the Product at that time.

A physical defect consists of the Product's non-conformity with the Sales Contract. In particular, the Product does not conform to the Sales Contract if:

1. It lacks the characteristics that a Product of that type should have for the purpose specified in the Sales Contract or arising from the circumstances or intended use.
2. It lacks characteristics that the Seller assured the Customer it would have, including those demonstrated by a sample or model.
3. It is unsuitable for a purpose communicated by the Customer when concluding the Sales Contract, unless the Seller raised an objection to that intended use.
4. It has been delivered to the Customer in an incomplete condition.

Where the Customer is a consumer, public statements made by the manufacturer or its representative, a person placing the Product on the market in the course of business, or a person presenting themselves as the manufacturer by placing their name, trademark or other distinguishing mark on the Product, are treated as equivalent to statements made by the Seller.

A Product also has a physical defect if it has been incorrectly installed or commissioned, provided that these activities were performed by the Seller, a third party for whom the Seller is responsible, or the Customer in accordance with instructions received from the Seller.

Legal defects

The Seller is liable to the Customer if the Product sold belongs to a third party or is encumbered by a third-party right, or if restrictions on its use or disposal arise from a decision or ruling of a competent authority. In the case of the sale of a right, the Seller is also liable for the existence of that right.

Exemption of the Seller from statutory warranty liability

The Seller is exempt from statutory warranty liability if the Customer knew about the defect at the time the Sales Contract was concluded.

Where the Sales Contract concerns Products identified only by type or Products to be manufactured in the future, the Seller is exempt from statutory warranty liability if the Customer knew about the defect at the time the Product was delivered. This provision does not apply where the Customer is a consumer.

The Seller is not liable to a consumer for the absence of characteristics resulting from the public statements described above if the Seller was unaware of those statements and could not reasonably have been expected to know about them, if the statements could not have influenced the Customer's decision to conclude the Sales Contract, or if the statements were corrected before the contract was concluded.

The Seller is not liable for damage resulting from improper use. In the case of wooden pipes sold by the store, this most commonly includes heat damage or burn-through of the tobacco chamber and pipe bowl caused by smoking too aggressively. This is hereinafter referred to as improper pipe-smoking technique.

BASIC CONSUMER RIGHTS

For contracts governed by the non-conformity provisions

These rights generally follow a two-stage process, meaning that the Customer may proceed to the second stage only after exhausting the remedies available at the first stage.

Stage 1: Repair or replacement

If the Product does not conform to the Sales Contract, the Customer may request that it be brought into conformity with the contract by means of a free repair or replacement with a new Product, unless repair or replacement is impossible or would entail excessive costs.

When assessing whether the costs are excessive, the value of a conforming Product, the nature and significance of the non-conformity, and the inconvenience that another remedy would cause the Customer shall be taken into account.

Stage 2: Price reduction or refund

If, for the reasons described above, the Customer cannot request repair or replacement, or if the Seller fails to fulfil such a request within an appropriate period, or if repair or replacement would cause significant inconvenience to the Customer, the Customer may request an appropriate price reduction or withdraw from the Sales Contract.

The Customer may not withdraw from the Sales Contract if the Product's non-conformity is insignificant. When determining an appropriate period for repair or replacement, the nature of the Product and the purpose for which it was purchased shall be taken into account.

For contracts governed by the statutory warranty provisions

These rights are generally available on an equivalent basis, meaning that the Customer may initially exercise rights from either of the following groups.

Group 1: Price reduction or refund

If the Product sold has a defect, the Customer may declare a price reduction or withdraw from the Sales Contract, unless the Seller immediately replaces the defective Product with one free from defects or removes the defect without excessive inconvenience to the Customer.

This restriction does not apply if the Product has already been replaced or repaired by the Seller, or if the Seller has failed to fulfil the obligation to replace the Product with one free from defects or to remove the defect.

The reduced price must bear the same proportion to the contract price as the value of the defective Product bears to the value of a defect-free Product. The Customer may not withdraw from the Sales Contract if the defect is insignificant.

- If the Customer is a consumer, they may request replacement of the Product with one free from defects instead of the remedy proposed by the Seller, or request removal of the defect instead of replacement, unless bringing the Product into conformity with the Sales Contract in the manner chosen by the Customer is impossible or would entail excessive costs compared with the alternative proposed by the Seller. When assessing whether the costs are excessive, the value of a defect-free Product, the nature and significance of the defect, and the inconvenience that another remedy would cause the Customer shall be taken into account.

If only some of the Products sold are defective and can be separated from the defect-free Products without harm to either party, the Customer's right to withdraw from the contract is limited to the defective Products.

Group 2: Repair or replacement

If the Product sold has a defect, the Customer may request replacement with a defect-free Product or removal of the defect.

The Seller is obliged to replace the defective Product with one free from defects or remove the defect within a reasonable period and without excessive inconvenience to the Customer.

The Seller may refuse to comply with the Customer's request if bringing the defective Product into conformity with the Sales Contract in the manner chosen by the Customer is impossible or would entail excessive costs compared with the other available remedy.

IMPORTANT COMPLAINT DEADLINES

Two months to notify the Seller of non-conformity

The Buyer loses their rights if they fail to notify the Seller of the Product's non-conformity with the Sales Contract within two months of discovering it. The deadline is met if the notification is sent before the period expires.

Six-month presumption that non-conformity existed at delivery

The Seller is liable if the Product did not conform to the Sales Contract at the time of delivery. If the non-conformity is discovered within six months of delivery, it is presumed to have existed at the time of delivery.

Two years of Seller liability

The Seller is liable for non-conformity with the Sales Contract only if it is discovered within two years of the Product being delivered to the Customer. This period starts anew if the Product is replaced.

One-year presumption that a defect existed at delivery

The Seller is liable under the statutory warranty for physical defects that existed when the risk passed to the Customer or that resulted from a cause inherent in the Product at that time.

If the Customer is a consumer and a physical defect is discovered within one year of delivery, it is presumed that the defect or its cause existed when the risk passed to the Customer.

Two years of Seller liability under the statutory warranty

The Seller is liable under the statutory warranty if a physical defect is discovered within two years of delivery of the Product to the Customer, or within five years in the case of defects in real estate.

The provisions governing physical defects apply correspondingly to the exercise of rights under the statutory warranty for legal defects. However, the period for exercising these rights begins on the day the Customer learns of the defect or, if the Customer learns of it only as a result of a third party's legal action, on the day the ruling in that dispute becomes final.

WHERE AND HOW TO SUBMIT A COMPLAINT

The Customer may submit a complaint, for example:

• By post: Ostrów 656, 37-700 Przemyśl, Poland
• By email: kontakt@brogshop.pl

DESCRIPTION OF THE COMPLAINT

To facilitate and speed up the Seller's consideration of the complaint, the Customer is advised to include the following information:

1. Information and circumstances relating to the subject of the complaint, particularly the nature of the non-conformity or defect and the date on which it occurred or was discovered.
2. The requested remedy to bring the Product into conformity with the Sales Contract, or a statement requesting a price reduction or withdrawal from the Sales Contract.
3. The contact details of the person submitting the complaint.

The above requirements are recommendations only. Failure to include the suggested information does not affect the validity of a complaint submitted without it.

RETURNING THE PRODUCT SUBJECT TO A COMPLAINT

A Customer exercising rights under the statutory warranty is required to deliver the defective Product to the following address at the Seller's expense:

Ostrów 656, 37-700 Przemyśl, Poland.

If, due to the nature of the Product or the way it has been installed, delivery by the Customer would be excessively difficult, the Customer is required to make the Product available to the Seller at the place where it is located.

SELLER'S RESPONSE

The Seller will respond to the Customer's complaint without undue delay and no later than 14 calendar days from the date the complaint is submitted.

Failure to respond within this period means that the Seller has accepted the complaint as justified.

OUT-OF-COURT METHODS OF COMPLAINT RESOLUTION AND CLAIMS, AND ACCESS TO THESE PROCEDURES

Detailed information on out-of-court methods of resolving consumer complaints and pursuing claims, including access to these procedures, is available at the offices and on the websites of district and municipal consumer ombudsmen, social organisations whose statutory purpose is consumer protection, and Regional Trade Inspection Authorities.

Further information is available from the Office of Competition and Consumer Protection (UOKiK) at the following addresses:

• http://www.uokik.gov.pl/spory_konsumenckie.php
• http://www.uokik.gov.pl/sprawy_indywidualne.php
• http://www.uokik.gov.pl/wazne_adresy.php

A consumer may use, among other options, the following out-of-court procedures for resolving complaints and pursuing claims:

• The Customer may apply to a permanent consumer arbitration court, as referred to in Article 37 of the Act of 15 December 2000 on Trade Inspection (Journal of Laws 2001, No. 4, item 25, as amended), to resolve a dispute arising from the Sales Contract. The organisation and operation of permanent consumer arbitration courts are governed by the Regulation of the Minister of Justice of 25 September 2001 on the Rules of Organisation and Operation of Permanent Consumer Arbitration Courts (Journal of Laws 2001, No. 113, item 1214).
• The Customer may apply to the Regional Trade Inspection Authority, pursuant to Article 36 of the Act of 15 December 2000 on Trade Inspection (Journal of Laws 2001, No. 4, item 25, as amended), to initiate mediation proceedings aimed at resolving the dispute amicably between the Customer and the Seller. Information on the rules and procedures for mediation conducted by Regional Trade Inspection Authorities is available at their offices and on their respective websites.
• The Customer may also obtain free assistance in resolving a dispute with the Seller from a district or municipal consumer ombudsman or a social organisation whose statutory purpose is consumer protection, including the Consumer Federation (Federacja Konsumentów) and the Polish Consumers Association (Stowarzyszenie Konsumentów Polskich). The Consumer Federation provides advice through its free consumer helpline at 800 007 707, while the Polish Consumers Association can be contacted at porady@dlakonsumentow.pl.