Negative description of the sold googs : in anticipation for the Common European Sales Law

Streszcz. ang. s. 173-174

The question of the so called "negative description" of the sold goods is a matter of the long lasting dispute. This notion covers such description of the goods, which deprives them of the qualities and features which usually could be expected by the consumer. This phenomenon is a challenge for the application of the system of remedies for the lack of conformity of the goods. The right of the parties to determine the subject matter of the contract is usually considered as an essential component of the freedom of contract. It is, however, also a device which allows the seller to circumvent the mandatory nature of the rules governing the remedies. Therefore, the proposal for the Common European Sales Law (CESL) attempts to provide for a solution that purports to balance the subjective concept of the lack of conformity and the requirement of the consumer protection on the market with the predominantly standardized goods. This tension between these two poles is also a tension between the different concepts of the contract law. Is the return to the more objective notion of the defect of goods necessary? Was the subjective approach to the "lack of conformity" a dead end? The contract law of the mass transactions must be reconsidered. The issue of the "negative description" is one of the significant points marking this challenge.