Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 07/04/23 Aceptado el 23/07/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 156-171
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Breach of obligations under
contracts for the sale of goods and
supply of digital content in European
Union and Ukrainian law
DOI: https://doi.org/10.46398/cuestpol.4179.11
Liudmyla Savanets *
Anzhelika Baran **
Tetiana Podkovenko ***
Hanna Poperechna ****
Olena Dyka *****
Abstract
The content of the research lies in an analysis of the legal
prescriptions of the legislation of the European Union and
Ukraine, which determine the liability of the parties for breach or
improper performance of obligations under contracts for the sale
and purchase of goods and supply of digital content. With the help of general
and special philosophical methods, the possibility and legal consequences
of applying the liability provisions of the relevant articles of the Civil Code
of Ukraine, to the contractual relations of purchase and sale of goods and
the supply of digital content (violation of the contract of sale by the seller
and the lessee, copyright infringement, etc. are discussed. ) It is concluded
that in order to harmonize the Ukrainian legislation with the legislation
of the European Union, the provisions of individual drafts and Directives
of the European Parliament and the Council, which regulate the specic
sphere of legal relations, were analyzed. Special attention was paid to the
implementation of the draft Law on Digital Content and Services and its
* Candidate of legal sciences, Associate Professor, Associate Professor at the Department of International
law and Migration policy at West Ukrainian National University, Ternopil, Ukraine. ORСID ID: https://
orcid.org/0000-0002-0051-8905. Email: l.savanets@wunu.edu.ua
** Candidate of legal sciences, Associate Professor, Associate Professor at the Department of International
law and Migration policy at West Ukrainian National University, Ternopil, Ukraine. ORСID ID: https://
orcid.org/0000-0003-2134-1325. Email: abaran_wunu@ukr.net
*** Candidate of legal sciences, Associate Professor, Associate Professor at the Department of Theory and
History of State and Law at West Ukrainian National University, Ternopil, Ukraine. ORСID ID: https://
orcid.org/0000-0003-0344-3010. Email: tpodkovenko@gmail.com
**** PhD., in Law, Associate Professor, Associate Professor at the Department of International law and
Migration policy at West Ukrainian National University, Ternopil, Ukraine. ORСID ID: https://orcid.
org/0000-0001-6978-4892. Email: hn.stahyra@gmail.com
***** PhD., in Economics, Associate Professor of the Department of National Security, Public Administration
and Administration at Zhytomyr Polytechnic State University, Zhytomyr, Ukraine. ORСID ID: https://
orcid.org/0000-0002-0800-3498. Email: dyolena@ukr.net
157
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
compliance with the basic principles of private law in this area, established
on the basis of the values of the European Union.
Keywords: contractual liability; digital content; purchase and sale of
digital content; digital content provider; consumer.
Incumplimiento de las obligaciones derivadas de
los contratos de compraventa de bienes y suministro
de contenidos digitales en la legislación de la Unión
Europea y de Ucrania
Resumen
El contenido de la investigación radica en un análisis de las
prescripciones legales de la legislación de la Unión Europea y Ucrania,
que determinan la responsabilidad de las partes por el incumplimiento o
cumplimiento indebido de las obligaciones derivadas de los contratos de
compraventa de bienes y suministro de contenido digital. Con la ayuda de
métodos losócos generales y especiales, se discute la posibilidad y las
consecuencias jurídicas de aplicar las disposiciones sobre responsabilidad
de los artículos pertinentes del Código Civil de Ucrania, a las relaciones
contractuales de compra y venta de bienes y el suministro de contenido
digital (violación del contrato de compraventa por parte del vendedor y el
arrendatario, violación de los derechos de autor, etc.) Se concluye que, para
armonizar la legislación ucraniana con la legislación de la Unión Europea,
se analizaron las disposiciones de proyectos individuales y Directivas del
Parlamento Europeo y el Consejo, que regulan la esfera especíca de las
relaciones jurídicas. Se presto especial atención a la implementación del
proyecto de Ley de Contenidos y Servicios Digitales y su cumplimiento de
los principios básicos del derecho privado en esta materia, establecidos en
base a los valores de la Unión Europea.
Palabras clave: responsabilidad contractual; contenido digital; compra
y venta de contenidos digitales; proveedor de contenido
digital; consumidor.
Introduction
The emergence of the global Internet, new technologies and the latest
methods of communication have largely inuenced changes in law. The
domestic legislator faced an urgent need for both the introduction of legal
158
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
norms for the regulation of emerging relations and the adaptation of existing
legislative provisions to new realities (Savanets and Stakhira, 2020).
Ukraine’s intention to become a member of the European Union
(hereinafter – EU) necessitates bringing its legislation into line with the
requirements of EU legislation. The relevant obligation is dened in the
Association Agreement between Ukraine, on the one hand, and the EU, the
European Atomic Energy Community and their member states, on the other
hand. Thus, the preamble states that the parties «undertake to ensure the
gradual adaptation of Ukrainian legislation to the EU acquis in accordance
with the directions specied in this Agreement and to ensure its eective
implementation».
One of the directions of cooperation and adaptation of legislation is to
ensure the gradual adaptation of Ukrainian legislation to the EU acquis.
Therefore, Ukraine has expressed its readiness to implement into national
legislation the existing acts of the EU institutions in accordance with the
directions dened in the agreement, one of which is the strengthening of
economic and trade relations, through the creation of an in-depth and
comprehensive free trade zone, including intangible objects, which include
digital content.
It should be emphasized that the market of digital content and digital
services in Ukraine is not developing as quickly as compared to European
countries. One of the dening reasons for the slow development of this sector
of the market is the lack of legal regulation of the provision of digital content
and (or) digital services to consumers. The presence of the mentioned
problems prompted an analysis of the legislation of the European Union
and Ukraine in terms of legal regulation of breach of obligations under
contracts for the sale of goods and the supply of digital content.
1. Methodology of the study
The basis of the research methodology was: the dialectical method of
legal knowledge, the application of which made it possible to single out the
contractual construction of the supply of digital content and highlight its
features; a comparative-legal method of knowledge, with the help of which
the analysis of the provisions of the EU secondary law on contracts for the
purchase and sale of goods and the supply of digital content was carried
out and their comparison with the relevant norms of the civil legislation
of Ukraine, as well as the system-functional method in the interpretation
of legal categories, as a result of which deepened and the conceptual and
categorical apparatus of civil law regulation of relations of purchase and
sale of goods and supply of digital content was claried.
159
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
2. Analysis of recent research
Separate organizational and legal aspects of the regulation of public
relations in the sphere of buying and selling goods and supplying digital
content have been the subject of research by many scholars of civil
contract law. We do not deny that the conducted scientic research has
great theoretical and practical signicance. At the same time, the modern
contractual law of the European Union is undergoing transformations
caused by the challenges of the digital revolution, standardization and
digitization of private legal relations of a contractual nature, which requires
a detailed scientic analysis of the possibilities and legal consequences of
applying to contractual relations from the circulation of digital content the
general provisions on liability for breach of contractual obligations and
special norms of the Civil Code of Ukraine.
In addition, taking into account the desire to harmonize Ukrainian
legislation with the legislation of the EU, the research also requires the
provisions of the relevant Directives of the European Parliament and the
Council, which regulate the contractual relations of the purchase and sale
of goods and the supply of digital content, and establish the responsibilities
of the parties to the contract.
The purpose of this article is a comprehensive analysis of the regulatory
regulation by the European Union and Ukraine of responsibility for breach
of obligations arising from contracts for the purchase and sale of goods and
the supply of digital content.
3. Results and discussion
3.1. Peculiarities of the legislative regulation of breach of
obligations under contracts of sale of goods and supply of
digital content in Ukraine
The Civil Code of Ukraine contains a number of provisions establishing
general principles of liability for breach of contractual obligations. The
legislator denes that a violation of an obligation is its non-fulllment or
fulllment in violation of the conditions determined by the content of the
obligation (improper fulllment) (Article 610 of the Civil Code of Ukraine)
(Civil Code Of Ukraine, 2003).
The doctrine has repeatedly emphasized that improper performance
involves an obligation that is fullled, but with existing violations of certain
terms of the contract, for example, regarding the quality of the transferred
goods, their quantity, the deadline for the fulllment of the obligation,
volume, etc.
160
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
Instead, it is customary to consider non-performance as the inaction
of the debtor. It is quite logical that such a dierentiation gives rise to a
number of practical problems. In particular, in the case of the application
of the provisions of the law regulating liability for non-fulllment of an
obligation, reasonable doubts arise regarding the ability of the creditor
to simultaneously demand both the fulllment of the obligation in kind
and compensation for damages (in case of improper performance of the
contract).
Considering the fact that the market of digital goods and services, which
includes digital content, is rapidly displacing the market of tangible goods
that have an identical purpose (for example, e-books, watching videos
in online format, as well as in streaming format, etc. instead of the usual
paper books, videos and music stored on material media CDs, DVDs), calls
for a scientic analysis of the responsibility of the parties for breach of
obligations in contracts for the supply of digital content.
First of all, we note that the Central Committee of Ukraine does not dene
the concept of digital content and does not regulate the legal relationship of
its circulation. However, the mixed legal nature of digital content, as well
as the nature of the relationships that arise in the process of its circulation,
makes it possible to apply the most similar contractual constructions on the
basis of legal analogy (Kalaur and Stakhira, 2019).
Liability on the basis of the general provisions of Chapter 51 of the Civil
Code of Ukraine is based on the restoration of the equality of the parties in
binding legal relations by granting one of the parties the right to: terminate
the obligation due to unilateral refusal of the obligation, if this is established
by a contract or law, or termination of the contract ; changing the terms
of the obligation; penalty payment; compensation for damages and moral
damage (Civil Code Of Ukraine, 2003).
At the same time, the application of such responsibility is impossible
without the existence of the obligation itself, that is, a legal relationship in
which one party (the debtor) is obliged to perform a certain action for the
benet of the other party (the creditor) (transfer property, perform work,
provide a service, pay money, etc.) or refrain from committing a certain
action (negative obligation), and the creditor has the right to demand from
the debtor the fulllment of his obligation. At the same time, the application
of the general rule on the right to terminate the obligation by unilateral
refusal may be limited, provided that the digital content is provided to the
user free of charge, that is, the debtor in this legal relationship is not obliged
to take any actions in favor of the creditor, and therefore, does not enjoy the
right to terminate the obligation due to unilateral refusal.
Particular attention needs to be paid to clarifying the responsibility of
the parties under the contract for the supply of digital content, applying
161
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
by analogy the contractual structure of purchase and sale. In particular,
it seems interesting to study the possibility of applying the provisions of
Art. 673 of the Civil Code of Ukraine regarding the quality of goods to a
special object of civil legal relations - digital content. The obligation of the
seller, established in the legislation, is to transfer to the buyer the goods
of proper quality, that is, their suitability to achieve the corresponding
purpose (Civil Code Of Ukraine, 2003).
In case of violation of quality obligations, the buyer has the right,
regardless of the possibility of using the product for its intended purpose,
to demand from the seller, at his choice: a proportional price reduction;
free elimination of product defects within a reasonable period of time;
reimbursement of expenses for the elimination of product defects. In the
event that the digital content was purchased according to a sample or
description (for example, the buyer was previously provided with a demo
version of software or an online game), the application of part 3 of Art. 673 of
the Civil Code of Ukraine, which establishes requirements for compliance of
the quality of the goods with the previously provided sample or description,
will provide an additional opportunity to protect the expected expectations
of the buyer.
Consumer contracts require additional analysis regarding liability for
breach of contractual obligation to supply digital content. Applying the
provisions of the Law of Ukraine «On the Protection of Consumer Rights»
to contracts for the supply of digital content, in the event that a deciency
in the digital content is discovered by the consumer, in accordance with
part 1 of Art. 8, the right to demand: 1) a proportional price reduction
is guaranteed; 2) free of charge elimination of product defects within a
reasonable period of time; 3) reimbursement of expenses for elimination of
product defects (Consumer Rights Protection, Law Of Ukraine, 1991).
The specied norm gives the consumer the right to terminate the contract
and the right to demand the replacement of the product in the event of a
signicant defect only if the seller (manufacturer) of the product is at fault.
In this context, the question of the possibility of protecting one’s own rights
by the consumer in the event of the existence of a signicant defect without
the fault of the manufacturer (seller) arises. There is no doubt that the issue
of defective goods is a type of improper performance of an obligation.
However, the legal consequences of the transfer of defective goods
are based on other grounds than those arising from general principles of
liability. First of all, the reason is the defect of the product, not the damage
caused. In the event of the existence of a defect, the structure of responsibility
acquires the character of the responsibility of the seller regardless of fault,
as well as his awareness (knowledge), and therefore this responsibility is
based on the principle of «risk». The above gives reason to understand such
responsibility as a means of protecting buyers (Savanets, 2017).
162
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
Taking into account the specics of digital content and taking into
account the fact that, although it is not a thing (in the interpretation of
Article 179 of the Civil Code of Ukraine), as a subject exclusively of the
material world, it nevertheless has a combined legal nature, the lack of
legislative consolidation of the concept of digital content makes it possible
to apply by analogy the provisions of Chapter 58 of the Civil Code of Ukraine
on digital content hire (lease) contracts.
As evidenced by the analysis of the content of the Civil Code of Ukraine,
the construction of the lessor’s responsibility is similar in construction to
the seller’s responsibility in sales contracts, the subject of which is digital
content. Yes, the lessor is responsible for the timely transfer of digital
content to the lessee (immediately or within the period specied in the
contract). In addition, the legislator especially protects the lessee’s rights in
case of inconsistency in the quality of the digital content, both as stated in
the contract and as guaranteed by the lessor to the lessee during the entire
period of use of the digital content.
Such a quality guarantee and liability provided for non-compliance with
warranty obligations regarding the quality of digital content is the main
way to protect the tenant in case of destruction or damage to his property.
In particular, the lessor is responsible for the destruction, damage,
distribution on the network without the lessee’s consent of his personal les
stored on the lessor’s server. At the same time, in Art. 768 of the Civil Code
of Ukraine denes the right of the tenant to demand from the landlord:
1) replacement of digital content, if possible; 2) a corresponding reduction
in the fee for using the content; 3) free of charge elimination of defects
in digital content or reimbursement of expenses for their elimination; 4)
termination of the contract and compensation for damages caused to him
(Civil Code Of Ukraine, 2003).
At the same time, for the use of digital content under the employment
contract, it is worth paying attention to the provisions of clause 3 of Art. 767
of the Civil Code of Ukraine, which obliges the lessee to check the condition
of the thing (Civil Code Of Ukraine, 2003). At rst glance, such a rule
should protect the rights of the lessor and the lessee, but given the mixed
legal nature of digital content rental contracts, we consider the possibility of
conducting such an inspection «in the presence of the lessor» burdensome
for the lessee and does not contribute to ensuring the equality of the parties
in civil legal relations.
Also, in view of the spread of copyright on digital content, the author
may be held liable for the non-compliance of digital content provided for by
the Law of Ukraine «On Copyright and Related Rights», but only in the case
of concluding an author’s contract.
163
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
It is certain that at the current stage of the development of the market
of digital goods and services there is an urgent need for eective unied
regulation of relations related to the circulation of digital content. In
the national doctrine, an opinion was expressed regarding taking as a
basis the draft Directive of the European Parliament and the Council on
certain aspects relating to contracts for the supply of digital content dated
December 9, 2015 No. 2015/0287 (Proposal for a Directive of the European
Parliament and the Council on certain aspects concerning contracts for
the supply of digital content 2015/0287, 2015), which established the
maximum form of harmonization, in particular with regard to provisions
relating to liability for non-fulllment or improper fulllment of the service
provider’s obligations.
According to Art. 10 of the draft of this Directive, the provider of digital
content services is responsible for: violation of the obligation to supply
goods and services that are digital content; any inconsistency of the digital
content with the terms of the contract existing at the time the consumer
receives such content; in case, according to the terms of the contract, digital
content must be provided to the consumer during a certain period - for
each non-compliance of the digital content with the terms of the contract
during the entire period of its consumption. Limitation of the liability of the
supplier of digital content under the contract takes place only at the stage of
applying the appropriate means of legal protection of the consumer and is
established on the basis of the proportionality of the degree of responsibility
with the oense committed (Proposal for a Directive of the European
Parliament and the Council on certain aspects concerning contracts for the
supply of digital content 2015/0287, 2015).
At the same time, the nal adoption of Directive 2019/770 and Directive
2019/771 (Directive (EU) 2019/770 Of The European Parliament And Of
The Council, 2019; Directive (EU) 2019/771 Of The European Parliament
And Of The Council, 2019 ) means that the EU member states cannot
dene either a stricter or a softer form of liability, but only undertake to
introduce into their legislation norms that are identical to the provisions
of the aforementioned Directives on the liability of the service provider,
according to which the circulation of digital content is carried out (Kalaur
and Stakhira, 2019).
3.2. Problematic issues of the implementation of the European
Union Directives aimed at regulating the circulation of digital
content and liability for breach of contractual obligations
It is worth noting that the legislation of the EU member states did not
immediately adopt the position of the need to develop a separate regulatory
regulation of digital content circulation relations. In order to implement
into national legislation the provisions of Directive 2011/83/EU of the
164
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
European Parliament and of the Council on consumer rights dated October
25, 2011 (Directive 2011/83/Eu Of The European Parliament And Of The
Council, 2011), a number of draft laws were developed.
Many scholars pointed out the impossibility of appropriate application
of the sales provisions to the legal relationship of circulation of digital
content in the case when the Civil Code itself does not contain its denition.
It was also pointed out the ineectiveness of enshrining the contractual
construction of the supply of digital content exclusively in the legislation
on consumer rights, which will signicantly narrow the application of legal
norms exclusively to the regulation of consumer relations in the eld of
digital content circulation (Targosz and Wyrwiński, 2015). We share this
point of view, since the dierences between tangible goods, energy and other
resources and digital content are so signicant that joint legal regulation of
the sale of goods and the supply of digital content will be ineective.
A number of doubts and comments arose when clarifying the need to
apply regulatory provisions in the eld of purchase and sale of goods to the
legal relationship of the supply of digital content (Schmidt-Kessel, 2012;
Nowacka, 2017; Wendehorst, 2012, p. 44).
Ambiguity in the positions of both scientists and the European
Commission regarding the application of common European regulation
of sales contracts contributed to the development of a new approach to
the regulation of contractual relations in this area, which ended with the
adoption of Directive 2019/771 of the European Parliament and of the
Council on some aspects of sales contracts of goods dated May 20, 2019,
which determined the extension of legal regulation of purchase and sale
to legal relations, the subject of which are goods with digital elements
(Directive (EU) 2019/771 Of The European Parliament And Of The Council,
2019).
Taking into account the above, we consider it necessary to apply the
approach of separate regulatory regulation of the purchase and sale of goods
and the supply of digital content in the development of legal regulation of
the circulation of digital content. It is expedient to introduce into domestic
legislation a separate contractual structure for the supply of digital content,
and the extension of the norms of Chapter 54 of the Civil Code of Ukraine
to the legal relations of the circulation of digital content is justied in the
case of concluding a contract, the subject of which will be goods with digital
elements, the separation of which is not possible without such goods losing
their properties (Savanets and Stakhira, 2020).
It is important to establish the possibility of applying the provisions
of Directive 2019/770 and Directive 2019/771 to legal relationships in
which the proper use of the purchased product is prevented by the lack
of a digital service provided by a third party, and not by the seller of the
165
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
product (Directive (EU) 2019/770 Of The European Parliament And Of
The Council, 2019; Directive (Eu) 2019/771 Of The European Parliament
And Of The Council, 2019). It is also problematic to dene the concept of
a shortage of goods, taking into account the characteristics of goods with
digital content and articial intelligence, which require regular updates.
The question of bringing the seller to justice in the event of a lack of
software that supports the functioning of goods with digital elements
purchased by the consumer (for example, tness trackers, connected cars
with a built-in navigation system), and the proper quality of the main
material object is important. In such cases, clarication requires the
possibility of covering the lack of digital service (software) that supports
the functionality of the smart device with the concept of product non-
conformity (Kalamees and Sein, 2019).
This issue is partially resolved in Part 3 of Art. 3 of Directive 2019/771,
which applies to goods with digital elements, that is, any tangible movable
things that include digital content (digital service) or are related to it (it) in
such a way that their absence aects the functionality of the product (point
«b» part 5 of article 2 of Directive 2019/771) (Directive (EU) 2019/771 Of
The European Parliament And Of The Council, 2019).
However, the most dicult of these challenges relate to the purchase
of goods with ancillary digital services (eg, smart TVs with Netix and
Youtube apps, smart cars with app-controlled digital navigation systems).
The consumer concludes with the seller a contract for the sale of material
goods and an additional license contract with the provider of digital content
for the use of digital services. This raises the issue of the consumer’s right to
demand termination of the sales contract or a reduction in the price of a new
smart TV in case of problems with Netix. A similar situation occurs with
the improper operation of smartphone programs, the navigation system of
a smart car (Sein and Karin, 2020).
In the case of goods with digital elements, it is quite dicult to determine
the cause of their non-conformity and establish the moment of occurrence,
which is of great importance when the risk of product non-conformity
passes. An interesting situation is the impossibility of synchronizing
a tness tracker with a corresponding application or a smart car with
navigation maps due to the lack of compatibility of pre-installed software
and its update if the application has completely stopped working (Kalamees
and Sein, 2019).
The seller, as a rule, is not obliged under the sales contract to provide
the consumer with a digital service that supports the functioning of the
product, therefore the doctrine proposes to establish at the legal level the
warranty obligation of the seller to ensure the provision of relevant services
to the consumer even after the transfer of risk to the buyer or conclude an
166
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
additional contract for the provision of services between the seller and the
buyer (consumer) to the sales contract. We share the point of view of some
scientists that in such cases the seller will be liable in case of incompatibility
of the product with digital elements with the application, if he is also the
manufacturer of this program.
Directive 2019/771 does not contain rules regulating contractual
relations involving the assistant (intelligent assistant) of the buyer, for
example, Amazon Alexa, Google Assistant or Apple Siri (Busch, 2018). We
share the point of view of J. M. Carvalho (Carvalho, 2019) that such a gap
will complicate the modern development of contractual relations, because
the actions of the buyer’s assistant (intelligent assistant) by mutual consent
of the parties should be considered as obligations under the sales contract.
Also, one of the problematic issues of both directives is the use of a
large number of evaluative concepts (Vanherpe, 2020), such as «normal»,
«reasonable», «long-lasting», «serious», «functional», «informed».
Their interpretation in practice can be controversial and will lead to a
signicant increase in the number of decisions of the EU Court regarding
the observance of justice. This can directly aect the consumer’s decision to
enter into a contract.
The purpose of the draft Law on Digital Content and Digital Services
dated January 31, 2022 No. 6576 (Draft Law No. 6576, 2022) is the
objectively determined need to model the legal regulation of civil-law
relations between the performer and the consumer regarding the provision
of digital content on the basis of a contract and (or) a digital service, as
well as the legislative establishment of an eective legal instrument for the
protection of the rights of consumers who are provided with digital content
and (or) a digital service (Explanatory note to the draft Law No. 6576,
2022).
The draft law denes the sphere of civil legal relations to which
its provisions apply, distinguishes subjective and objective criteria for
compliance of digital content and (or) digital service with the terms of the
concluded contract, establishes the legal consequences of failure to provide
digital content and (or) digital service under the contract, and as well as non-
compliance of the provided digital content and (or) digital service with the
requirements stipulated by this Law, the grounds and legal consequences
of the refusal of the contract under which the digital content and (or) digital
service is provided are determined (Explanatory note to the draft Law No.
6576, 2022).
As evidenced by the analysis of the said draft law, there is a certain
inconsistency in it with other normative legal acts, inaccuracy in the wording
of certain terms. In particular, in Art. 3 of the project denes relations that
are not covered by this Law. At the same time, the Law of Ukraine «On the
167
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
Peculiarities of Providing Public (Electronic Public) Services» denes the
principles of providing electronic public services, public services, complex
electronic public services, and the automatic mode of providing electronic
public services.
In addition, Art. 2 of the said draft oers a denition of terms, in
particular the term «digital content». It is worth noting that this term
is already contained in the Law of Ukraine «On Payment Services» (On
Payment Services. Law Of Ukraine, 2023). The sphere of regulation of
relations dened by this law is precisely digital services and digital content,
therefore, the developers are invited to provide denitions for «digital
content» and «digital services» with further alignment with other regulatory
legal acts operating with the specied concepts. Also, in the provisions of
Art. 4 of this project, in contrast to the provisions of Art. 6 of Directive
2019/770, there is no reference to the article on the rights of third parties.
In the conclusion of the Committee on Digital Transformation of the
Verkhovna Rada of Ukraine, it is noted that in order to distinguish such
concepts as digital content and digital service, to ensure the operation of
these concepts in regulatory and legal acts, to avoid collisions and the lack
of settlement of discrepancies between electronic and digital forms, as
well as to establish such elements as objects of civil rights, we recommend
that the specied law dene what exactly is the «digital form» of this or
that object (Conclusion of the Committee on Digital Transformation of the
Verkhovna Rada of Ukraine to the draft Law on Digital Content and Digital
Services, 2022).
The legislative initiative, in the event of nal approval, will regulate
such legal relationships in which the performer on the basis of the contract
provides or undertakes to provide digital content and (or) a digital service
to the consumer, and the consumer provides or undertakes to provide his
personal data, except when their transfer is necessary exclusively for the
provision of digital content and (or) a digital service, without the intention
of their further use to achieve any other goals; relations in which the
performer on the basis of the contract provides or undertakes to provide
digital content and (or) a digital service developed in accordance with the
consumer’s specication; relations in which the performer, on the basis of
the contract, provides or undertakes to provide digital content on a tangible
medium, which is intended exclusively for the storage of such digital
content.
In general, we can conclude that Draft Law No. 6576 in its purpose
does not contradict Ukraine’s international legal obligations in the eld of
European integration, but needs to be revised in order to bring it into line
with Directive 2019/770.
168
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
Conclusions
The contract for the supply of goods and digital content is a new type of
contractual obligation that needs to be enshrined in current civil legislation.
In order to harmonize Ukrainian legislation with the legal requirements of
the European Union, it is expedient to bring the draft Law on Digital Content
and Digital Services into compliance, as well as to develop and enshrine in
the Civil Code of Ukraine provisions that will regulate the legal relationship
of the purchase and sale of goods and the supply of digital content, in
particular, determine liability for violation of relevant obligations in this
area.
One of the key novelties of European contract law was the provisions of
Directive 2019/770 and 2019/771, which establish the concept of product
conformity, digital content, digital service, subjective and objective criteria
for determining product conformity and have a consolidated impact on
consumer protection and trade in the EU in general.
Incorporation of these Directives into national legislation will contribute
to uniform legal regulation of contractual relations in the eld of purchase
and sale of goods, related in particular to digital content, and will facilitate
cross-border transactions, increasing their number. Despite the fact that
the Court of Justice of the EU is competent in solving issues of prosecution
for breach of obligations under contracts for the sale of goods and the
supply of digital content, more specic instructions from the EU legislator
could increase legal certainty in the process of implementing these norms.
Chapter 51 of the Civil Code of Ukraine transfers the responsibility of
the parties arising on the basis, and, among other things, gives the right to
unilateral waiver of the obligation, can be applied only in the case when the
parties concluded a contract for the supply of digital content. The diculty
of fully applying the provisions governing the purchase and sale to the
legal relationship of the circulation of digital content is associated with: the
transfer of the thing to the ownership of the buyer, which is characteristic of
the purchase and sale, which practically does not apply in the case of digital
content; specic requirements for the quality of digital content, which in
the understanding of the doctrine can be ambiguously interpreted and
applied only to physical media on which digital content is placed; as a way
to protect the rights of the consumer of digital content in the context of his
obligation to prove the fault of the supplier in case of detection of defects or
signicant defects of digital content during the warranty period.
Liability for contracts for the supply of digital content in Ukraine is not
unied, which creates ambiguity in the choice of methods of protection of
violated rights. The implementation of the provisions of Directives 2019/770
and 2019/771 into the legislation of Ukraine should be a signicant step
towards ensuring the protection of the rights of Ukrainian consumers and
169
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
providers of digital content services, as well as conrmation of Ukraine’s
fulllment of the obligations assumed in the Association Agreement with
the EU.
To this end, the project of Law No. 6576, which by its purpose does not
contradict Ukraine’s international legal obligations in the eld of European
integration, needs to be nalized as soon as possible in order to bring it into
line with EU requirements and adopt it as a basis at the national level for
regulating contractual relations of purchase and sale of goods and supply
of digital content.
Bibliographic references
BUSCH, Christoph. 2018. “Does the Amazon Dash Button Violate EU Consumer
Law? Balancing Consumer Protection and Technological Innovation in
the Internet of Things” In: Journal of European Consumer and Market
Law. Vol. 2. pp. 79-80.
CARVALHO, Jorge Morais. 2019. “Sale of goods and supply of digital content
and digital services — overview of Directives 2019/770 and 2019/771”
In: Journal of European Consumer and Market Law. Vol. 8, No. 5, pp.
194–201.
CONCLUSION OF THE COMMITTEE ON DIGITAL TRANSFORMATION
OF THE VERKHOVNA RADA OF UKRAINE TO THE DRAFT LAW
ON DIGITAL CONTENT AND DIGITAL SERVICES. 2022. Reg. No.
6576. Available online. In: https://itd.rada.gov.ua/billInfo/Bills/
CardByRn?regNum=6576&conv=9. Consultation date: 10/04/2023.
DIRECTIVE (EU). 2019. 2019/770 Of The European Parliament And
Of The Council Of 20 May 2019 On Certain Aspects Concerning
Contracts For The Supply Of Digital Content And Digital Services.
Available online. In: https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX%3A32019L0770. Consultation date: 10/04/2023.
DIRECTIVE (EU). 2019. 2019/771 Of The European Parliament And Of The
Council Of 20 May 2019 On Certain Aspects Concerning Contracts
For The Sale Of Goods. Available online. In: https://eur-lex.europa.
eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32019L0771&from=pl.
Consultation date: 10/04/2023.
DIRECTIVE (EU). 2011. 2011/83/Eu Of The European Parliament And Of The
Council Of 25 October 2011 On Consumer Rights. Available online. In:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32
011L0083&from=EN. Consultation date: 10/04/2023.
170
Liudmyla Savanets, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna y Olena Dyka
Breach of obligations under contracts for the sale of goods and supply of digital content in
European Union and Ukrainian law
DRAFT LAW ON DIGITAL CONTENT AND DIGITAL SERVICES. 2022. Reg.
No. 6576. Available online. In: https://itd.rada.gov.ua/billInfo/Bills/
CardByRn?regNum=6576&conv=9. Consultation date: 10/04/2023.
EXPLANATORY NOTE TO THE DRAFT LAW ON DIGITAL CONTENT AND
DIGITAL SERVICES. 2022. Reg. No. 6576. Available online. In: https://
itd.rada.gov.ua/billInfo/Bills/CardByRn?regNum=6576&conv=9.
Consultation date: 10/04/2023.
KALAMEES, Piia; SEIN, Karin. 2019. Connected consumer goods: who is
liable for defects in the ancillary digital service? In: Journal of European
Consumer and Market Law. Vol. 1, pp. 13–22.
KALAUR, Ivan; STAKHIRA, Anna. 2019. Liability of parties for breach of
contractual obligations for the supply of digital content. Law of Ukraine.
pp. 77-90.
NOWACKA, Izabela. 2017. Umowa o dostarczeniu tresci ditykylch. Jagiellonian
University. Poland, Krakow.
ON PAYMENT SERVICES. 2023. No. 1591-IX. Verkhovna Rada. Available
online. In: https://zakon.rada.gov.ua/laws/show/1591-20#Text.
Consultation date: 10/04/2023.
LAW OF UKRAINE. 1991. On The Protection Of Consumer Rights No. 1023-
XII. Available online. In: https://zakon.rada.gov.ua/laws/show/1023-
12#Text. Consultation date: 10/04/2023.
PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND
THE COUNCIL ON CERTAIN ASPECTS CONCERNING CONTRACTS
FOR THE SUPPLY OF DIGITAL CONTENT 2015/0287. 2015. The
database of legislation of the European Union. Available online. In:
https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-
634-EN-F1-1.PDF>. Consultation date: 10/04/2023.
SAVANETS, Lyudmila. 2017. Consumer rights in case of purchase of goods
of inadequate quality under the legislation of the European Union and
Ukraine. In: Actual problems of jurisprudence. Ukraine.
SAVANETS, Lyudmila; STAKHIRA, Anna. 2020. “New legislative instruments
of the European Union concerning the purchase and sale of goods and
the supply of digital content” In: Law. Vol. 64, No. 2. pp. 222–244.
SAVANETS, Lyudmila; STAKHIRA, Anna. 2020. “The concept of the contract
for the supply of digital content in the context of the adaptation of the
contract law of Ukraine to the acquis communitare of the EU” In: Law
Forum. Vol. 61, No. 2, pp. 56–64.
171
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 156-171
SCHMIDT-KESSEL, Martin. 2012. Ausgestaltung der Option und andere
Fragen zur Verordnung. Ein einheitliches europaisches Kaufrecht?
In: Analyze des Vorschlags der Kommission. Sellier European Law
Publishers. Munich, Germany.
SEIN, Karin. 2020 «Goods with digital elements» and the interplay with
Directive 2019/771 on the sale of goods. Available online. In: https://
ssrn.com/abstract=3600137. Consultation date: 10/04/2023.
TARGOSZ, Tomasz; WYRWIŃSKI, Michał. 2015. “Dostarczanie treści dizyczych
a umowa przyszkiej. Uwagi na tle projektu nowelizacji art. 555 of the Civil
Code” In: Forum Prawnicze. Vol. 27, No. 1, pp. 18–31.
THE CIVIL CODE OF UKRAINE. 2003. Newsletter Of The Supreme Council
Of Ukraine (VVR), Nos. 40-44, Article 356. Available online. In: https://
zakon.rada.gov.ua/laws/show/435-15. Consultation date: 10/04/2023.
VANHERPE, Jozeen. 2020. “White smoke, but smoke nonetheless: some
(burning) questions regarding the Directives on sale of goods and supply
of digital content” In: European Review of Private Law. Vol. 28, No. 2,
pp. 251–273.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
