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30. oktobra, 2020

SERBIA: Buyer’s rights and seller’s obligations during the complaint

Duty and responsibility of the seller

According to Article 50 of the Law on Consumer Protection, the seller is obliged to deliver goods that are in accordance with the contract. Compliance is one of the terms that confuses consumers.

It is assumed that the delivered goods are in accordance with the contract:

  • if it corresponds to the description given by the seller and if it has the characteristics of the goods which the seller has shown to the consumer as a sample or model;
  • if it has the properties necessary for the specific use for which the consumer procures it, and which was known to the seller or must have been known to him at the time of concluding the contract;
  • if it has the properties necessary for the regular use of goods of the same kind;
  • if in terms of quality and functionality, it corresponds to what is typical for goods of the same type and what the consumer can reasonably expect given the nature of the goods and public promises about the special properties of goods given by the seller, manufacturer or their representatives, especially or on the packaging of the goods.

The seller is liable for non-conformity of the delivered goods to the contract if:

  • existed at the time the risk was passed on to the consumer, whether or not the seller was aware of the inconsistency;
  • occurred after the transfer of risk to the consumer, if it originates from a cause that existed before the transfer of risk to the consumer;
  • could be easily noticed by the consumer, if the seller stated that the goods were in conformity with the contract.

 

 

The seller is also liable for non-conformity caused by improper packaging, improper installation or assembly performed by them or a person under their supervision. The seller is also responsible when the incorrect installation or assembly of the goods is a consequence of a defect in the instructions they gave to the consumer for independent installation or assembly.

The seller is not liable for non-conformity if at the time of concluding the contract the consumer was aware or could not remain unaware that the goods did not comply with the contract, or if the cause of non-conformity was in the material provided by the consumer.

 

Complaint of purchased goods

According to Article 52, paragraph 1 of the Law on Consumer Protection, if the delivered goods do not comply with the contract, the consumer who has notified the seller of non-compliance, has the right to request the seller to eliminate the non-compliance. This must be done free of charge, by repair or replacement. Appropriate price reductions may be requested or the contract in respect of those goods may be terminated.

The consumer has the right to request:

  • replacement,
  • appropriate price reduction or
  • to terminate the contract due to the same or another lack of conformity that appears after the first repair.

Repairs are only possible with the express consent of the consumer. Taking into account the nature of the goods and the purpose for which the consumer procured them, the repair or replacement must be carried out within a reasonable time without significant inconvenience to the consumer and with his consent.

If the non-compliance occurs within six months from the date of the transfer of risk to the consumer, the consumer has the right to choose between:

  • demands that the discrepancy be remedied by substitution,
  • by a corresponding reduction in price or yes
  • stated to terminate the contract.

In the event that non-compliance occurs within six months from the date of transfer of risk to the consumer, the elimination of non-compliance is possible by repair with the express consent of the consumer. All costs necessary for the goods to comply with the contract, and in particular the costs of labor, materials, collection and delivery, shall be borne by the seller.

Also, the consumer cannot terminate the contract if the non-conformity of the goods is insignificant.

 

Seller vs Consumer

The consumer can also file a complaint to the seller due to incorrectly calculated prices and other shortcomings. The consumer can make a complaint verbally at the point of sale where the goods were purchased, but can also at:

 

  • another place designated for receiving complaints,
  • by phone,
  • in writing,
  • electronically, i.e. on a permanent record carrier, with the submission of an invoice for inspection or other proof of purchase.

 

Duties of the seller

The seller is obliged to prominently display the notice on the manner and place of receiving complaints at the point of sale. He is also obliged to ensure the presence of a person authorized to receive complaints during working hours.

The seller is obliged to issue a written confirmation to the consumer or to confirm the receipt of the complaint electronically. In this way, the number under which his complaint was registered in the records of received complaints is announced.

The seller is obliged to keep records of received complaints and to keep it for at least two years from the day of submitting consumer complaints. Records of received complaints are kept in the form of a bound book or in electronic form. Contains information on:

  • to the applicant,
  • the date of receipt of the complaint,
  • information on the goods,
  • a brief description of the non-compliance and the claim from the complaint,
  • the date of issuance of the acknowledgment of receipt of the complaint,
  • consumer response decision,
  • the date of delivery of that decision,
  • agreed reasonable deadline for resolution agreed by the consumer,
  • the manner and date of resolving the complaint,
  • information on the extension of the deadline for resolving the complaint.

 

Deadlines

The seller is obliged to respond to the consumer’s complaint without delay, and no later than within eight days from the day of receipt of the complaint. This can be done in writing or electronically. The seller’s response to the consumer complaint must contain:

 

  • the decision whether to accept the complaint,
  • statement on consumer request and
  • specific proposal and deadline for resolving the complaint.

The deadline cannot be longer than 15 days from the day of submitting the complaint. For the technical deadline and furniture, this deadline is 30 days.

The seller is obliged to act in accordance with the decision, proposal and deadline for resolving the complaint, if he has obtained the prior consent of the consumer.

If the seller, for objective reasons, is not able to satisfy the consumer’s request within the agreed time, he is obliged to inform the consumer about the extension of the deadline for resolving the complaint and state the deadline within which he will resolve it, as well as to obtain his consent. He is obliged to record this in the records of received complaints. Extension of the deadline for resolving complaints is possible only once.

Note: It often happens that consumers are not familiar with the Law. Sellers know how to use this and it often happens that they look for packaging on hand in order to start the complaint process. The inability of the consumer to deliver the packaging of the goods to the seller cannot be a condition for resolving the complaint or a reason for refusing to eliminate the non-compliance.

 

Analysis of the most common complaint situations

In accordance with the above, we will analyze the specifics for the following three situations:

  • Return of goods with refund
  • Replacement for the same item
  • Replacement with surcharge or payment of the difference in price

 

Return of goods with refund

N1 form

As Article 52 of the Law on Consumer Protection provides for the possibility of terminating the contract in case of non-conformity of the goods, the analysis of the implementation of this procedure by the seller is given below.

Article 5 of the Ordinance on the content and manner of recording turnover by issuing a fiscal invoice, the manner of eliminating errors in recording turnover through the fiscal cash register and the content and keeping a book of daily reports (hereinafter: the Ordinance), stipulates that the elimination of errors in recording turnover they have not been removed until the moment of giving the command to the fiscal cash register for printing the fiscal excerpt, they can be performed only if the purchased good is returned or the goods are otherwise complained after the issuance of the fiscal excerpt, ie fiscal invoice. The correction is made by a correction order, on Form NI – Correction Order.

According to Article 6 para. 1, 2 and 5 of the Ordinance stipulates that the correction on the NI Form is made only on the basis of the original fiscal section (fiscal invoice). It must record the turnover of a specific good that is returned or otherwise a complaint is made about that good. A separate NI Form is filled in for each fiscal section, on the basis of which the recorded turnover is corrected. It shall be completed on the same day as the good is returned or otherwise advertised.


Return of goods for subjective reasons

Let us first clarify what all the reasons are of a subjective nature. That is when the consumer does not like the purchased goods, the model and color do not suit him, he found out that he did not need those goods, he saw the same kind of goods in another shop, but cheaper and the like. The return of goods for reasons of a subjective nature depends solely on the will of the seller to approve your complaint.

If the sold goods have no defect, function properly, have the properties required for the use of goods of the same type, so the goods are in accordance with the contract, and the consumer wants to return the goods and take the money back, the seller is not obliged and has no legal obligation to accept such consumer request. Namely, in this case, it is not a matter of filing a complaint for the purpose of exercising the right on the basis of non-compliance of the goods with the contract. Accordingly, the consumer has no legal basis to claim a refund.

The seller can, in accordance with the business policy and good trade customs, meet the needs of the consumer. This specifically means that the seller can grant the consumer a replacement for some other goods of the same value (or a replacement for more expensive goods with a surcharge difference) or return the money back to him.

In the event of termination of the contract, the general rule provided for in Article 132 of the Law on Obligations, which regulates the effect of termination of the contract, shall apply. In accordance with the above, the consumer returns the goods, and the trader returns the money, in the amount on the day of payment, regardless of whether there has been a price leveling in the meantime.

Also, in accordance with Article 34 of the Law on Consumer Protection, in case of withdrawal from the contract, the trader makes a refund using the same means of payment that the consumer used in the original transaction. The consumer can also accept the use of another means of payment. It is important to note that the condition is that the consumer does not bear any costs due to such a refund.

 

 

Replacement for the same item

In case of replacement for the same item, the buyer must also have the original fiscal clip. Article 6, paragraph 4 of the Ordinance stipulates that the NI Form is not filled in only if the goods are exchanged for goods of the same type and value, therefore there is no obligation to issue a new fiscal section.

 

Replacement of goods with additional payment or payment of the difference in price

In case of exchange for another item, the buyer must also have the original fiscal clip. According to Article 7 of the Ordinance, if the buyer is given another type of good for the returned good, the correction of the recorded turnover is made on the NI Form. Based on the data from the NI Form, the taxpayer reduces the recorded daily turnover by the amount of returned cash. In this case, the taxpayer is obliged to record the turnover of goods given in exchange through the fiscal cash register, or through the fiscal account.

 

In this case, a correction is made on the NI form and the recorded turnover is reduced, while a new fiscal invoice is issued for the newly purchased item.

Reduction of turnover is done in the book of daily reports, as well as in the records kept by the taxpayer in accordance with the regulations governing the recording of turnover of goods.

 

Recording of turnover through the cash register

In case of return of goods or exchange for other goods according to Article 3, paragraph 1 of the Law on Fiscal Cash Registers, a person who is registered in the appropriate register and who performs retail trade of goods, i.e. provides services to individuals, is obliged to record each individual turnover through the fiscal cash register.

Therefore, only retail trade is recorded through the fiscal cash register, the definition of which can be found in the Trade Act. According to Article 12 of the said Law, retail trade (retail) is the sale of goods and / or the provision of services to consumers in order to meet personal or household needs.

As the return of goods does not have the character of retail trade in the sense defined by the Law, there is no obligation to record the turnover based on the return of goods through the fiscal cash register.

Pursuant to Article 21, paragraph 4 of the Law on Value Added Tax, if the supply of goods and services was made to a taxpayer who is not entitled to deduct previous VAT, or to a person who is not a VAT payer, the VAT payer may amend trade in goods and services to those persons.

In this case, it is NI a form.

 

Conditions for the validity of the NI form

If the individual value or the total value of the purchased goods that are returned or advertised is greater than 500 dinars, the following must be entered in the NI Form in block letters:

 

  • name and surname of the buyer,
  • his JMBG,
  • the buyer is obliged to sign in his own handwriting.

If the name and surname of the customer, his JMBG and the customer’s personal signature are not entered in the NI Form, such NI Form is invalid.

For goods that are returned or otherwise advertised, and whose individual value or total value is less than 500 dinars, data on the buyer and his personal signature are not required.

 

 

Non-compliance with regulations regarding the submission of information on the Unique Identification Number

 Law on Personal Data Protection

The provision of Article 5 of the Law on Personal Data Protection regulates the principles of personal data processing. Among other things, this article stipulates that personal data must:

  • process legally,
  • fair and
  • transparent in relation to the data subject (“legality, fairness and transparency”).

Legal processing is processing that is performed in accordance with this law, ie another law which regulates processing; collect for purposes that are specifically specified, explicit, justified and lawful and still cannot be processed in a way that is inconsistent with those purposes (“restriction on the purpose of processing”); be appropriate, relevant and limited to what is necessary in relation to the purpose of processing (“data minimization”). The provision of Article 12 of this Law stipulates that processing is legal only if the person to whom the personal data relates has agreed to the processing of his / her personal data for one or more specially determined purposes or the processing is in accordance with the purposes defined by this Law.

 

Law on Fiscal Cash Registers

The Law on Fiscal Cash Registers, on the basis of which the Rulebook was adopted as a bylaw, does not provide for the provision of personal data of the buyer when advertising goods. This is especially true of JMBG which is a very sensitive data. The obligation to provide this complex information was introduced by the Ordinance as a bylaw.

 

Consumer Protection Act

Such a provision is not in accordance with the Law on Consumer Protection, which allows the consumer to exercise his right to a refund by submitting an invoice for inspection or other proof of purchase (copy of invoice, slip, etc.). According to this law, no other conditions may be set for the reclamation of goods. Records of received complaints are kept in the form of a bound book or in electronic form. It contains in particular information on:

  • to the applicant,
  • the date of receipt of the complaint,
  • information on the goods,
  • a brief description of the non-compliance,
  • request from the complaint,
  • the date of issuance of the acknowledgment of receipt of the complaint,
  • consumer response decision,
  • the date of delivery of that decision,
  • agreed reasonable deadline for resolution agreed by the consumer,
  • the manner and date of resolving the complaint,
  • as well as information on the extension of the deadline for resolving the complaint (Article 56, paragraph 6 of the Law on Consumer Protection).

 

Conclusion

We conclude that in this case the basis for the processing of personal data is a bylaw, which is contrary to the Constitution and the Law. The reason is because the possibility of misuse of personal data opens up. Such processing of personal data is contrary to the principles of data processing. It is not legal, justified and not necessary in relation to the purpose of processing (“data minimization”).

The previous issue indicates the inconsistency of regulations in the field of personal data protection and regulations in the field of value added tax. That is, in order for the NI form to be valid, ie for you to be able to reduce the VAT liability on the basis of the returned goods, the NI form would have to state the customer’s JMBG. Therefore, if the customer refuses to provide you with information about his JMBG during the complaint, VAT would then be the cost of your company.