General
In a world which is daily becoming more globalized and in which trade relations between countries and individuals are becoming more intense, a contract of sale is the most frequently used type of contract. Contracts of sale are also of the greatest economic importance. Contracts of sale give the purchaser and the seller different mutual obligations. According to section 208 (1) of the Law of Obligations Act (hereinafter referred to as the LOA), a seller undertakes to deliver an existing item, an item which is to be manufactured or produced, or an item which is to be acquired in the future by the seller in order to be sold to the purchaser, and allows the transfer of ownership to the purchaser, while the purchaser undertakes to pay the purchase price to the seller for the item in question and to take delivery of the item. In the case of the above obligations being in force, these are principle obligations which are derived from a contract of sale. At the same time, the contracting parties also have other obligations while they are part of the legal relationship which is formed by a contract of sale. One such obligation is the obligation of the purchaser to examine the item that they have purchased.
LOA section 219 (1) provides that if a purchaser has entered into a contract of sale in the course of the purchaser's professional or economic activities, the purchaser shall promptly examine the purchased item or have the purchased item examined. It is important to bear in mind that the obligation to examine the item applies to the purchaser only in cases where the purchaser has entered into a contract of sale in their professional or economic activities. Those purchasers who are consumers and who are acting in a non-professional capacity do not bear the obligation to examine their purchases pursuant to the law.
However, in order to be able to detect any failure of a purchase to conform to the specifications for that item and to perform their obligation to provide notification of any defects, it is also reasonable for private purchasers to examine the item that they have purchased. In many cases (especially in the case of the sale of more advanced equipment), the location at which a performance of an examination of a purchase, as well as the period in which the examination is carried out after the purchase, the manner in which an examination is carried out, and any other conditions for the performance of an examination of the item will be agreed upon in the contract of sale. In the case of any absence of contractual agreements, the regulation which is provided by law shall be applied.
Objective
The objective of the obligation to examine items is to detect any omissions and defects which the item might possess in order to make it possible to notify the seller thereof (so discharging the purchaser's obligation to provide notification), and to resort to legal remedies against the seller in the case of an item being sold which does not conform to the wording of the contract (e.g., a purchaser demanding the repair of an item which does not properly conform or requesting the delivery of a substitute item from the seller). As a rule, it is possible to detect nonconformities only by examining the item, except in cases where the purchaser has become aware of nonconformities from other sources. While the obligation to examine the item is targeted at detecting defects the purchased item might possess, the detection of defects as soon as possible after purchase is also in the interest of the purchaser who, in the case of an occurrence of any defects, can immediately start making a claim against the seller.
Helmeri Indela a lawyers at the law firm Glikman & Partnerid, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms which includes Kronbergs & Cukste in Estonia and Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.
