Could the new Consumer Sales Act benefit the environment?
One year has passed since the new Consumer Sales Act (“CSA”) entered into force. The CSA applies to agreements entered into after 1 May 2022, which mean that case law will most likely start to develop in the following year. The new law is more beneficial for consumers and more tightening for companies. In this article we aim to reflect on sales of products deviating from what the consumers normally may expect and which impact the new regulation may have on the environment.
It is not surprising that companies and consumers may disagree on whether a product is defect according to what the consumers normally may expect from such product or the agreement between the parties. Product defects can be divided into subjective and objective defects, governed by two different paragraphs in chapter 4, 1 respective 2 §§ CSA. Subjective defects refer to defects making the product deviate from what the parties have set out in their agreement. Objective defects refer to defects making the product incompatible with the expectations a consumer normally has on, or can expect of, the product in question or products of a similar kind.
According to chapter 4 § 6 CSA, the parties can agree to a lower standard than set out in chapter 4 § 2 CSA, i.e., lower standard according to objective requirements. An agreement according to chapter 4 § 6 CSA is called a negative requirement agreement. We consider it positive that parties have freedom of contract according to the new CSA which among other should benefit the environment as the life cycle of a product potentially can be extended. Depending on the product included in the agreement, you may potentially be able to recycle material or use limited functions included in the product, hence avoid disposing of products which may fulfill other purposes.
However, chapter 4 § 6 § CSA offers certain requirements in order for a negative requirement agreement to be valid. First, the company need to inform the consumer about the deviation from the objective requirements. Second, the consumer needs to accept such deviation when concluding the agreement where such acceptance shall be made both expressly and separately. It also appears that general writings such as “present condition” or “as is” do not have an impact on a negative requirement agreement.
Information requirement according to chapter 4 § 6 CSA
Prior to entering into the agreement, the company needs to inform the consumer about the specific deviation. In the event of several deviations, each deviation shall be informed of separately. It is not enough to include information regarding a deviation among other disclosures as any deviations must be separately informed of. These requirements are, according to our opinion, far-reaching and it’s clear that the legislature values transparency regarding products deviations from the objective requirements.
Expressed and separate acceptance by the consumer
The acceptance of a deviation does not need to be in writing, although a written approval is to prefer over a verbal approval from an evidentiary perspective. By requiring the acceptance to be both expressed and separate, the consumer is required to take an active and unambiguous action. By example, a pre-marked check box is not considered to be an active action by the consumer. The approval may be part of a written agreement but shall in such case be separate from other terms and conditions and must be made at the latest when the agreement is concluded.
Reflections and thoughts
The freedom of contract is positive. However, companies will probably be careful to use the method since it is complicated. In the event of a larger purchase, written agreements are more custom, but otherwise the method is most likely too advanced.
Regarding chapter 4 § 6 CSA impact on the environment, the following positive aspect have been identified. Normally a product with a deviation would be rejected by the company and considered as unsaleable. However, if it is made easier to sell products with deviations, companies are encouraged to avoid discarding any defective products and instead may be more willing sell them despite of any defects. In the long run this will give defective products an extended life cycle with environmental effects. At the same time, according to our opinion, the requirements set out in chapter 4 § 6 CSA may be too strict for smaller companies which may undermine the possible positive environmental effects. From the wording of the legislative text, it is clear the legislature values transparency for the consumer in order to avoid the risk of misunderstandings and possible disputes, over the environmental effects.
 Consumer Sales Act (SFS 2022:260)
 For example, Harding Rebecka, Ersson Anna, Tightened consumer rules, New law 2:22, p. 31.