Hamburger
  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Key commercial contract terms

Enforceability of warranty disclaimers

Argentina

Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

Australia

Warranty disclaimers which purport to exclude, restrict or modify the consumer guarantees as contained in the ACL are unenforceable.

If a "warranty against defects" is provided in relation to goods or services, it must be provided in addition to the consumer guarantees. A "warranty against defects" is a representation made to a consumer that if goods or services (or part of them) are defective, a business will repair or replace goods (or part of them), resupply or fix a problem with services (or part of them) or provide compensation to the consumer.

Documents that evidence a warranty against defect, which may include receipts, labels or packaging in addition to a more formal contract, must contain certain information including the following mandatory text which is provided under the ACL:

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

Austria

Limitations and exclusions of warranty claims are generally permissible, except if contra bonos mores, but to be interpreted restrictively. Such disclaimers are not permissible in business-to-consumer contracts.

Belgium

Limitations and exclusions of warranty claims are generally permissible, including in business-to-consumer contracts, but are subject to the Act of September 1, 2004 (corresponding to Articles 1649bis and following of the Civil Code) on the protection of consumers in respect of the sale of consumer goods, which provides a two-year warranty period.

Brazil

Depending on the services or goods provided, and who the buyer is, the supplier may be subject to mandatory rules regarding warranties.

Disclaimers and contractual provisions on warranty are usually enforceable, provided that they do not conflict with mandatory rules. For instance, disclaimers against consumers are likely to be deemed null or considered abusive.

Canada

Great care must be taken in drafting warranty disclaimers. The Sale of Goods Acts in most of the common law provinces distinguish between conditions (the breach of which entitles the party to reject the goods) and warranties that only entitle the party to claim damages. Fitness for purpose and merchantability are implied conditions, and many cases can be found where clauses purporting to disclaim warranties of fitness for purpose and merchantability have been ignored because the provision is a condition not a warranty. In consumer transactions, some provinces have legislation that limits the ability to disclaim certain statutory or otherwise common implied terms.

Chile

Sellers, in their contracts can disclaim or exclude implied warranties. Disclaimers of warranty are usually enforced.

For contracts with consumers, there are special provisions in this regard, that generally include a forced period of 3 months for liability.

China

A disclaimer for the following is not valid and not enforceable:

  • For actions that caused personal injury
  • Disclaimers for intentional actions that caused serious property damage or that caused by gross negligence
  • Disclaimers in violation of mandatory clauses in the law

Colombia

Warranty disclaimers are recognized and enforceable if they are made known to the parties and/or are conspicuous.

According to Law 1480 of 2011, warranty disclaimers are not enforceable against consumers unless the product defect is derived from force majeure, a third-party fault, misuse of the product or the fact that consumer did not follow the instructions for the installation, use or maintenance of the product.

Czech Republic

Disclaimers of statutory warranty are acceptable, unless it is disadvantageous for the weaker party, ie, consumer.

Denmark

Disclaimers of warranty are usually enforced unless they are unconscionable, unclear or not conspicuous.

Warranty disclaimers against consumers are covered by mandatory provisions to protect the consumer. An unclear contract term must be interpreted in favor of the consumer.

Finland

In a B2B relationships, warranty disclaimers are enforced, however they do not properly serve as effective limitations of liability for defects. It is therefore recommended that the limitations to the liability of a party in respect of defects are expressed precisely instead of relying on general "no warranty" disclaimers.

Special consumer legislation provisions apply in the B2C context.

France

Certain statutory warranties such as the warranty of conformity (conformité), warranty against latent defects (vices cachés) or quiet title warranty cannot be excluded except under specific circumstances.

Consumers are entitled to specific additional warranties, and warranty disclaimers are generally unenforceable toward consumers.

Germany

As a general rule, warranty disclaimers are enforceable if individually negotiated. The Civil Code contains restrictions on enforceability for certain circumstances (eg, damages caused by intent). Further and quite extensive limitations apply in general terms and conditions (B2C and B2B), as well as generally in contracts
involving consumers.

Hong Kong

Disclaimers of warranty are subject to a test of reasonableness under the Control of Exemption Clauses Ordinance (Cap. 71). The disclaimers are enforceable if they are reasonable.

In a business contract for the sale of goods, a seller usually disclaims or excludes implied warranties that are provided in the Sale of Goods Ordinance (Cap. 26), including implied warranties of merchantable quality and fitness for a particular purpose.

With respect to consumer contracts for the sale of goods, the liability for breach of the implied terms and conditions under the Sale of Goods Ordinance cannot be excluded or restricted by reference to disclaimers.

Hungary

As a principal rule stipulated in the Civil Code, warranty cannot be disclaimed in consumer contracts.

In license contracts, the licensor warrants according to the general rules that the subject matter of the license agreement is appropriate for the contractual use or exploitation.

The Trademark Act and the Patent Act contains special warranty rules that refer to the general rules of the Civil Code.

In the event a license agreement qualifies as a consumer contract warranty cannot be validly disclaimed. In other cases, the warranty disclaimers are enforceable, although given the fact that the new Hungarian Civil Code entered into force in 2014, there is no court practice to corroborate this.

The one-year term of statutory warranty can be reduced, but not in the context of consumer contracts.

India

Where any right, duty or liability arises under a contract of sale by implication of law, it may be negative (overridden) or varied by express agreement or by the course of dealing between the parties or by usage, if the usage is such as to bind both parties to the contract.

Sellers, in their contracts for the sale of goods, customarily disclaim or exclude implied warranties and terms under the SOGA. The implied warranties that are disclaimed are usually the implied warranties of merchantability, fitness for a particular purpose and sometimes, non-infringement, warranties arising from usage of trade and course of performance.

Disclaimers of warranty are usually enforceable unless they are unconscionable, unclear or not conspicuous, or relate to fraud, personal injury or death.

Indonesia

Express warranty disclaimers are recognized and generally respected.

Ireland

While in general, warranty disclaimers will be enforceable under Irish law for business to business contracts, it is not possible to exclude the implied condition of title in a contract of sale.

The Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of Services Act 1980) contains certain implied terms relating to the quality of any goods. These cannot be excluded when supplying to consumers. There are other implied terms relating to the provision of services which can be excluded when supplying to consumers, subject to ensuring such exclusionary terms are fair and reasonable in the circumstances and are brought to the attention of the consumer.

A warranty disclaimer in a business to consumer contract may be unenforceable against the consumer where it is unfair, having regard to the European Communities (Unfair Terms in Consumer Contracts) Regulations, S.I. No. 27 of 1995 (as amended). A term may be considered unfair and unreasonable where it causes a significant imbalance in the parties’ rights to the detriment of the consumer having regard to the nature of the services, the circumstances surrounding the conclusion of the contract and the other terms of the contract.

Israel

In general, under Israeli law, parties are free to enter into an agreement which sets out exclusion of warranties or implied terms, subject to such exclusion not being an unfairly prejudicial term contained within a standard contract. With respect to certain specific goods, Israeli law sets out a mandatory warranty to be granted to a consumer, such warranty cannot be stipulated except where such stipulation was made for the benefit of the consumer.

Italy

In B2B sale contracts, the vendor shall ensure that the goods sold are free from defects which could make the goods unfit for the use for which they are intended or which could appreciably impair their value. Pursuant to Section 1490 of the Italian Civil Code, the agreement by which the parties exclude or limit such guarantees has no effect, if the seller has in bad faith concealed the goods’ defects to the buyer. Such legal guarantee lasts for one year.

In B2C sale contracts, the vendor shall ensure consumers against any lack of conformity for a period of two years from the delivery of the good. In this case, the consumer is entitled, at its option, to the repair or replacement of the defective good. Should such remedies be impossible or too burdensome, the consumer is still entitled to a price reduction or a reimbursement against the return of the defective product.

Japan

Warranty disclaimers are generally enforceable unless sellers are aware of a defect in the product(s) at the time of sale.

For disclaimers against consumers, even if the seller is not aware of a defect in the product(s) at the time of sale, comprehensive disclaimers are not enforceable under the Consumer Contract Act (CCA) (Act No. 61 of 2000).

Luxembourg

Limitations and exclusions of warranty claims are generally permissible, including in business-to-consumer contracts, but are subject to the Law of April 8, 2011 introducing a Consumer Code in Luxembourg in respect of the sale of consumer goods, as lastly amended by the Law of April 2, 2014, which provides a two-year warranty period.

Mexico

Under Mexican law, the granting of warranties is mandatory only for determined products and services. If a seller or service provider grants warranty to its client, it shall respect such warranty in all its terms and conditions and contain the minimum requirements set forth by the applicable law.

Netherlands

Limitations of warranty claims are generally permissible, including in business-to-consumer contracts, but may be subject to certain restrictions in the Dutch Civil Code (especially in respect of general terms and conditions). Limitations of warranty provisions that set aside a consumer's statutory rights are generally prohibited in a sale of goods agreement entered into with a consumer. In a consumer sale, a warranty must state in plain intelligible language which rights or remedies are granted to the buyer and make clear that these entitlements are without prejudice to rights or remedies conferred by law. The warranty must further state the name and address of the seller or the producer who granted the warranty and the duration and territorial scope for which it holds.

New Zealand

Statutory consumer's rights cannot be disclaimed or limited by a warranty disclaimer. A warranty disclaimer that purports to exclude or limit these rights will be unenforceable and could also lead to civil and/or criminal proceedings against the trader. Any warranty provided must be additional to statutory consumer guarantees.

Warranty disclaimers between parties in trade are generally enforceable, but in some cases, for example where there is a substantial imbalance of bargaining power, disclaimers may be challenged.

Norway

Disclaimers of warranty are usually enforced unless they are unconscionable, unclear or not conspicuous. Warranty disclaimers against consumers will most likely be covered by mandatory provisions seeking to protect the consumer, and in case of an unclear contract terms, it must be interpreted in favor of the consumer.

Poland

In B2B relations, warranty for defects may be extended, limited or excluded. However, the exclusion or limitation of liability on account of warranty for defects is considered invalid if the defect was hidden deceitfully.

In contracts concluded with consumers, the limitation or the exclusion of liability on account of warranty for defects is only admissible in the cases provided for in specific provisions.

Portugal

This will depend on the specific warranty. Notwithstanding, the law may provide some restrictions on the enforceability of warranty disclaimers – eg, for reasons of consumer protection.

Romania

Sellers, in their contracts for the sale of goods under Article 1699 of the NCC, may not exclude completely their liability for damages caused by their own actions or generated by reasons known by the seller at the time of sale which were hidden from the buyer. Enforceability of disclaimers against consumers is of limited applicability as it is mandatory for companies to offer warranty for the products/services sold to consumers.

Russia

Warranty disclaimers may be recognized as not valid if they contradict mandatory Russian legal provisions (especially, in the consumer context, where minimal statutory warranties in relation to specific goods or services are provided).

Saudi Arabia

Warranty disclaimer language must be considered on a case-by-case basis. Such language is generally subject to review by the KSA courts, which will likely assess whether the wording fairly allocates risk between the parties.

Singapore

The Sale of Goods Act (Cap. 393) implies a number of terms into the agreement, including, for example, implied conditions as to the seller's title to the goods and as to the goods being of satisfactory quality.

While it is not uncommon for a seller to disclaim warranties as to goods, where the contract for a sale of goods is entered into with a consumer, the Unfair Contract Terms Act (Cap. 396) will apply to restrict the ability of the seller to limit their liability in respect of:

  • The implied conditions under the Sale of Goods Act (Cap. 393) as to the goods being of satisfactory quality and
  • The implied conditions under the Sale of Goods Act (Cap. 393) as to title.

In addition, the Consumer Protection (Fair Trading) Act (Cap. 52A) will apply to consumer contracts alongside the Sale of Goods Act (Cap. 393). If the goods do not conform to the applicable contract at the time of delivery, consumers have the right to require the seller to:

  • Repair the goods
  • Replace the goods
  • Reduce the amount paid for the goods by the consumer or
  • Rescind the contract of sale

Slovak Republic

Not applicable for this jurisdiction.

South Korea

Under the KCC, a seller is obligated under a statutory warranty to ensure that the product sold is not defective, unless the buyer was or should have been aware of the defect before it accepted the product. If defects are found in the product sold, the Korean law subjects the seller to the warranty liabilities vis-à-vis the purchaser.

Spain

Disclaimers of warranties are usually enforceable in business to business deals unless they are unconscionable, unclear or not conspicuous. Disclaimers for gross negligence or willful behavior are void.

Warranty disclaimers against consumers are generally not allowed in most cases.

Sweden

Disclaimers of warranty are usually enforced unless they are unconscionable, unclear or not conspicuous. Unless otherwise agreed, goods shall, according to the Sale of Goods Act (1990:931) (Köplagen) conform to the contract with respect to type, quantity, quality, other characteristics and packaging.

Unless otherwise specified in the contract, the goods shall:

  • Be fit the purpose for which goods of a similar kind are generally used
  • Be fit for the particular purpose for which the goods are intended to be used provided that the seller, at the time of sale, must have realized that particular purpose and the buyer was reasonably entitled to rely upon the seller's expert knowledge and judgment
  • Possess the characteristics which the seller has referred to by providing samples or models
  • Be packaged in the customary or otherwise satisfactory manner, if packaging is required in order to preserve or protect the goods

If the goods deviate from the provisions of the first or second paragraphs or in some other respect deviate from the buyer's reasonable expectations, the goods shall be deemed to be defective.

Sale of Goods Act may be applicable to intellectual property by analogy.

Consumer legislation on sale of goods provides mandatory provisions on warranties.

Switzerland

Disclaimers for implied warranties are generally enforceable unless defects have been concealed in bad faith by the disclaiming party. If express warranties are made for certain specifications, liability may not be validly excluded for these specifications, since this would constitute contradictory behavior.

If disclaimers are included in general terms and conditions, they are enforceable unless the provisions are unusual. Unusual provisions are only regarded as valid if the party proposing them has expressly drawn the attention of the other party to the special element.

The Federal Unfair Competition Act prohibits general terms and conditions that provide, contrary to good faith, for an unfair allocation of rights and obligations to the detriment of consumers.

Taiwan

Warranty disclaimers are enforceable in Taiwan provided that appropriate conditions of the products/services are expressly specified and disclosed. 

Ukraine

Ukrainian law requires the guarantee to be granted by the producer (or its representative) of goods sold in Ukraine. Therefore, excluding guarantees, including the consumer guarantees, is not allowed. In case of commercial contracts, the parties are generally free to define the scope of the guarantee. Thus, the wording of the guarantee provisions may contain, in fact, a limited guarantee.

United Arab Emirates

In the UAE, suppliers of products (goods and services) are required to warrant that the products supplied conform to safety standards, are of good workmanship and are suitable for use in relation to their intended purposes. Suppliers are also required to warrant that the products are free from any defects and to undertake the repair or replacement of defective products. Generally, suppliers cannot contract out of these requirements. The local courts may therefore construe a warranty disclaimer accordingly.

United Kingdom

In a contract for the sale of goods, the Sale of Goods Act 1979 (SGA) implies a number of terms into an agreement. It is possible, to a certain extent, to disclaim some but not all of these implied terms. The terms implied by the SGA include a condition that the seller has the right to sell the goods (Section 12), that the goods conform to their description (Section 13), that the goods are of satisfactory quality (Section 14 (2)) and a condition that the goods supplied will be reasonably fit for purpose (Section 14 (3)).

Where there is a supply of goods, terms are also implied (but similarly, may to an extent be disclaimed) by the Supply of Goods and Services Act 1982 (SGSA) relating to the description (Sections 3 and 11C) and the quality (Sections 4 and 11D) of the goods transferred. In a supply of services, terms are implied relating to the care and skill with which the work is performed (Section 13), requiring the work to be carried out within a reasonable time (Section 14) and that, where consideration is not expressed in the contract, the party contracting with the supplier will pay a reasonable charge. Sections 13 and 14 are covered by common law rather than statute in Scotland.

The extent to which terms implied by the SGA and the SGSA may be excluded is largely controlled by the Unfair Contract Terms Act 1977 (UCTA). In a commercial contract, some of the implied terms, such as those relating to quality or fitness for purpose, can be disclaimed (commonly referred to as "excluded") but only insofar as this is "reasonable." A typical approach is to expressly exclude an implied term, replacing it in the commercial contract with a more specific express term to cover the same issue. For example, the contract might exclude implied terms as to quality/fitness for any particular purpose but expressly include terms agreeing that the goods will conform with the bespoke specification.

The restrictions in UCTA do not apply to international supply contracts (where contracting parties have places of business in different countries and the goods either cross from one country to another, or offer and acceptance take place in different countries).

The rules set out above in this section do not apply to consumer contracts. The Consumer Rights Act 2015 sets out a consumer's statutory rights over the quality of the goods, services and digital content that are supplied and the consumer's statutory remedies for the trader's breach of the supply contract. For example, the same quality requirements of the SGA and the SGSA referred to above are treated as the terms of the consumer supply contract for goods and services, and while similar, but different, rules apply to digital content. There are a number of terms in consumer contracts which cannot be excluded. The terms of consumer contracts and notices may also be considered unfair and not binding on consumers.

United States

Sellers, in their contracts for the sale of goods under Article 2 of the UCC, customarily disclaim or exclude implied warranties that are provided in the UCC for the benefit of buyers. The implied warranties that are disclaimed are usually the implied warranties of merchantability, fitness for a particular purpose and sometimes non-infringement and warranties arising from usage of trade and course of performance.

Disclaimers of warranty are usually enforced unless they are unconscionable, unclear or not conspicuous. Enforceability of disclaimers against consumers may differ from jurisdiction to jurisdiction.