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Increased legal protection for gift-getters

Lots of folks in Poland are wondering why exactly the new Consumer Rights Act is entering into force on the 25th of December. It sure looks like a lobbying effort by Old Saint Nick.

It’s common knowledge that Santa delivers presents on Christmas Eve—December 24th. By delaying the effective date of the new Consumer Rights Act by a single day, Father Christmas succeeded in avoiding the negative consequences for his jolly old self of legal solutions increasing the protection of consumers in Poland—including the beneficiaries of his chimney-delivered largesse. Next year—and indeed from 25 December 2014 forward—Polish stockings will be stuffed with lots more consumer rights. This year at least we can expect Santa’s sleigh to complete its rounds in Poland before the stroke of midnight. It’s purely a question of the legal cost/benefit analysis. Cold calculation this time of year.

By way of explanation, the new act protects consumers only in dealings with businesses. Considering the scale of Santa’s operations and the number of elves he has on staff in icebound extraterritorial waters, and considering that he earns his entire livelihood from toy production and distribution, it appears clear that Claus & Co. would be regarded as a “trader” under EU law and a business entity under Polish regulations.

Holiday traditions

Whether the new act applies to other gifting celebrations this time of year depends on the timing. Hanukkah this year runs from 16 December until the evening of the 24th, so will be governed entirely by the prior law; statutory periods could run from different dates depending on which of the 8 days of Hanukkah the gift was exchanged. By contrast, for anyone in Poland celebrating the pan-African harvest festival of Kwanzaa (26 December 2014 – 1 January 2015), the event will entirely fall under the new Consumer Rights Act—as will the traditional Orthodox Christmas, celebrated on 25 December 2014 of the Julian calendar, which is 7 January 2015 under the Gregorian calendar which is legally controlling in Poland.

Not what I wished for

Santa often slips us a present that we have no earthly use for. Under the amended consumer law, we will have a ready remedy if we receive socks that are admittedly toasty but a tad too large.

If we receive goods that we didn’t order, we aren’t required to pay for them. It might seem that deliveries from the North Pole come free of charge. But in fact, in expectation of receiving just the right gifts, folks have been known to make any number of promises: To be a little nicer and not so very naughty. Or maybe to quit smoking. Some of us offer in-kind incentives, leaving a glass of milk and a plate of cookies next to the Christmas tree for the red-suited fellow on his rounds. This kind of deal-making just serves to underline the professional nature of Santa’s enterprise.

If Santa leaves a present for us under the tree that wasn’t on our list, he does so at his own economic risk, and can’t demand that we carry out our promises in exchange.

Man of mystery

St. Nick is also required to provide us with all necessary facts. No more tossing presents under the tree with no information about the product whatsoever. We can demand that he tell us in an understandable way how we should use the gift. And he has to do it in Polish.

Santa has to identify the producer or importer of the product. We also have to have the opportunity to check the quality and completeness of the product, and the functioning of the main mechanisms and fundamental subassemblies. However, it’s unclear who will be awake to monitor Santa’s compliance with these informational obligations when nothing is stirring—not even a mouse.

Nonetheless, if someone takes a bite out of a bar of gift soap that looks like chocolate, we can charge Claus with failure to provide essential product information. He also has to notify us of any additional fees. If Santa does not clearly specify upon delivery of the product that we’d better not pout and better not cry, we cannot be required to be cheerful.

A lousy lump of coal

If we find a defective product under the Christmas tree, Santa is the not the only person we can complain to. If we think it will do more good, we can complain to the elves—assuming they qualify as the manufacturers of the product.

But all is not lost for Santa, because if he distributes shoddy goods bought from another seller he has recourse against them to make up the loss. While there is a common belief that all of the Christmas presents are handmade by elves at Claus’s whitefield manufacturing facility, considering that demand for presents probably far outstrips the production capacity at the North Pole, it is more likely that he outsources some orders to a third country. The damages Claus can seek against these suppliers are equal to the expenditures he had to incur to satisfy the rights of gift-getting consumers.

The new Consumer Rights Act extends to two years the period for exercising rights under the warranty against physical defects. This is advantageous for recipients, because in all the holiday whoop-de-do, a present may get mislaid and only be stumbled across the next season—perhaps stowed away by mistake in a box of Christmas tree ornaments. Under the new law, we will gain an extra year to complain about a defective present.

Moreover, Santa is required to exchange a defective item within a “reasonable” time and without excessive inconvenience to the consumer. That means we don’t have wait until next Christmas to exchange the product the next time Claus alights on our rooftop.

Let’s call the whole thing off

Even if we like the present—assuming that an item delivered by Santa was ordered at a distance or away from the seller’s premises—we have 14 days to withdraw from the contract. But then all our undertakings at self-improvement also cease to be enforceable, because when the contract is cancelled the parties have to give back whatever they exchanged.

However, we cannot simply withdraw from the contract if the product was manufactured to our own specifications or designed to satisfy our individual needs. The takeaway from this rule is that it may not be a great idea to be too picky when drawing up your wish list to send to Santa. If we expect him to bend over backwards to meet our every whim, we will lose the chance to return the product. Sometimes it’s better to go with whatever is fashionable this year and not order something suited only to your own quirks.

The amended regulations also do not apply to sound recordings, computer programs or alcoholic beverages. But we feel safe in assuming that our readers at least aren’t going to ask for a stocking full of booze.

Silence can be golden

One last thing. Failure to speak up when receiving something you did not order does not mean that you consent to the contract. Similarly, if we are too shocked at receiving a defective present to object right away, the case is not yet lost. Because of the extension of the statutory period, we can even wait until next Christmas to cancel the contract or demand replacement of a defective product.

But we feel we should warn readers not to abuse the new rights the law offers consumers. In contractual dealings, good relationships are also worth maintaining. Sometimes compromising or even waiving strict enforcement of some of our rights can help keep us on the best of terms with Father Christmas. If we try to meet him halfway, it may pay off in the long run. He’s a jolly old soul, and fair-minded to a fault. And no one likes a Scrooge.

Agnieszka Szydlik, Wardyński & Partners