The SIC and the new contractual order (part 1)

Contract law, as we knew it, disappeared. This at least in relation to contracts in which a consumer relationship is generated and in which the right to competition and restrictive trade practices are directly or indirectly involved.

This is because in these matters the Superintendence of Industry and Commerce (SIC), acting as an administrative or judicial entity, and without being the judge of the contract (i.e., without being the authority that can settle matters related to the rights and obligations thereof), when defining matters within its competence (consumer rights, unfair competition or restrictive trade practices) may ultimately disregard the terms and conditions agreed by the parties, declare -in practice- the breach of contract and penalize the parties for complying with them.

In this first study, we will analyze the effect that the SIC may have in contracts where a consumer relationship is generated. For this purpose, it is important to analyze a recent judgment issued by said public entity.

In judgment number 4452 of August 17, 2016, the SIC, by declaring the violation of the rights of a consumer by a producer, and by ordering the effectiveness of the guarantee, left a delicate precedent in contractual matters which could be summarized as follows; "if the good or service that I contract does not meet my expectations or does not fully satisfy the needs I had when contracting or acquiring it, then it is suitable and therefore the effectiveness of the legal guarantee proceeds". Thus, contract law is submerged in the subjectivism of particular conveniences, even if these had not really been the cause that led the consumer to contract.

The facts of the case are as follows: a consumer acquires a living room set, agreeing as delivery date March 7, 2015. The delivery of these was made incomplete on March 14, 2015. For having arrived incomplete, the purchaser demanded the exchange of the goods, which were picked up on 24/03/2015 agreeing as delivery date on 29/04/2015, date that was unfulfilled by the supplier. In view of these delays, the consumer demanded the enforcement of its legal guarantee indicating that the furniture had been acquired to be used instantly and that the delay suffered made the need unsatisfied.

In ruling, the SIC established that "the guarantee consists of the real possibility of enjoying a good or a service, and satisfying the needs that were present when it was acquired. The effectiveness of the guarantee is not only subscribed to the quality of the object sold or the service provided, but also to the compliance with the terms and conditions agreed from the very moment the contract was made, within which naturally is the timeliness in the delivery of the good or the provision of the service, since the non-delivery or provision or even the simple delay, constitutes a violation of the legitimate interests of consumers".

Although it is essential to protect the rights of consumers, we cannot go to the extreme of considering that any unforeseen event that causes their needs not to be satisfied may generate the effectiveness of the guarantee, thus ordering, in practice, the termination of the contract. If this position were to become generalized, commerce would be entering into a dynamic of tyranny of the consumer, where the latter could request, through the effectiveness of the guarantee, to undo the contracts legally entered into under the consideration that his needs have not been satisfied.