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‘Goods With Digital Elements’ and the Interplay With Directive 2019/771 on the Sale of Goods

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Document pages: 11 pages

Abstract: Adoption of the new consumer contract law package in 2019 has raised a question of the delimitation of the scopes of the directives: are ‘goods with digital elements’ within the scope of the digital content directive or the new consumer sales directive? As a starting point, the rules of the directives create a legal presumption that the seller of the smart good is liable not only for the tangible good and embedded digital software but also for the inter-connected digital services. This should be so even if the consumer concludes an additional licensing contract with the digital service provider in order to benefit from the digital service. However, this article argues that there is much room left for party autonomy with a consequence that exactly the opposite might become true in practice. It will also show that the situation becomes even more complicated for consumers when the ‘digital element’ of the good is a free and open source software. In these cases, the ‘separately bought’ digital content does not even fall within the scope of the digital content directive - with the result that the seller is not liable for the digital content under the consumer sales directive and the digital content provider is also not liable for it under the digital content directive. The consumer is then left without any remedies under the new directives. All in all, the sellers of goods with digital elements are clearly incentivized to exclude the digital elements from the consumer sales contract.

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