Synopsis The purpose of this study is to analyse the regime of the seller’s liability for nonconforming goods provided by the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, transposed into our national law by the Decree-law n.º 67/2003 of 8 April and to compare this model with the regime provided by the Portuguese Civil Code. The dogmatic model adopted by the Directive is different from the model adopted by our Civil Code because the Directive, inspired by the 1980 Vienna Convention on the International Sale of Goods, take as a paradigm the sale of generic and fungible goods and the Portuguese Civil Code, like the majority of Continental Civil Codes, is based on the paradigm of the sale of specific and non-fungible goods. Before the Portuguese Civil Code is at least controversial the statement that the seller has an obligation of deliver goods with qualities and without defects. Therefore, our Civil Code makes a dogmatic distinction between the sale of defective specific goods and the sale of defective generic goods. To this dogmatic distinction corresponds also a distinction between two regimes: a special regime applicable to the sale of specific defective goods and a general regime applicable to the non-performance of obligations. On the contrary, the Directive, which has the purpose to contribute to the modernization and simplification of the rules of the Member States on sale of defective goods, regulates the seller’s liability based on the principle of conformity of the goods with the contract. Under the Directive the seller will be responsible for non-conformity in the goods existing at the time of delivery. It means that the Directive, like the Vienna Convention, links the passing of risk with possession of goods: the time of the passing of risk is the time in which the seller fulfils his obligation of deliver to the buyer goods that are conforming with the contract. The rule of article 796.º, n.º 1 of Portuguese Civil Code, which links the burden of risk with the passing of property is not conform to the Directive and could not be applicable to consumers sales.
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