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Legal regulation of the provision of digital content and rights from a defective performance.
At present, the Czech legal system does not explicitly regulate the provision of digital content. In practice, these liabilities are usually classified as unnamed contracts.
Digital content is often protected by intellectual property rights, especially copyright. In such cases, the contract may also provide a license.
A contract, the subject of which is the creation of digital content to order, is a modified contract for work done.
In general, anyone who provides a performance for another for a fee must perform without defect. The subject of the performance must have the properties agreed upon by the parties or the usual properties so that the subject of the performance can be used according to the contract and, if known to the parties, also according to the purpose of the contract.
Defects in performance are therefore the responsibility of the party providing it under the contract (i.e. the seller, the service provider). Under the law, persons in the contractual chain are liable for defects to their contractual partners. For example, the manufacturer is liable for defects to the person who acquired the thing from it.
Rights from a defective performance according to the general regulation
Unless otherwise provided by the contract or the law, the assignee has the rights from a defective performance set out in the general part of the Civil Code. The rights of the assignee in the event of a defective performance differ depending on whether the defect can be eliminated (remediable defect) or not (irremediable defect):
- If it is a remediable defect, the buyer has the right to its repair, or to the supplementation of what is missing, or to a reasonable discount on the price.
- If it is an irremediable defect and at the same time the subject of performance cannot be used properly, the assignee may either withdraw from the contract or demand a reasonable discount from the price.
Rights from a defective performance from a contract for work done
A contract for work done is a contract that creates the obligation of the contractor to perform the work at their own expense and risk, and the obligation of the customer to take over the work and pay the price.
A work is defective if it does not correspond to the contract. The customer has the same rights as the buyer through a contract of sale. If the defect is a material breach of contract, the customer has the right to the elimination of the defect, a reasonable discount on the purchase price, or to withdraw from the contract. The customer may not request the performance of a replacement work if, due to its nature, the subject of the work cannot be returned or handed over to the contractor.
If the customer of the work is a consumer, special rules for consumer contracts and rights from defects in a consumer contract of sale will also apply.
Reference to legal acts
Section 1914 et seq.; Section 2615 et seq. of Act No 89/2012, the Civil Code, as amended
Compliance date: Last checked at 30.11.2020