Santa writes to the lawyer
Santa writes to the lawyer
"Every December, I visit every household through the chimney to bring presents to good children. However, I'm worried about what I'll be exposed to if one of the toys made by my elves turns out to be faulty. Would I have to repair it or take it back? What risk do I run?
Father Christmas, North Pole
If an item sold is defective, the buyer has the right to request a replacement, provided that the seller is notified immediately and that the seller has the necessary goods for an exchange. Such a guarantee is provided for by the Code of Obligations for toys sold in Switzerland, as well as by International Conventions protecting the rights of buyers for goods purchased abroad, provided that your country is a party to them.
If the terms and conditions governing your noble activity specifically stipulate this, you can also require your customers to send faulty items to your team of elves for repair.
That said, based on your explanations, your activity does not appear to constitute a sale but rather a donation, since you are giving gifts to children with the clear intention of doing so free of charge. In this context, there is no legal guarantee against defects and the donor is only liable to the recipient of the gift in the event of gross negligence or if a special guarantee has been promised. It should be noted that the fact that your activity is not remunerated and is not of an economic nature also means that the Federal Product Liability Act does not apply, as gifts generally fall outside its scope, unless you venture to distribute defective items for the purpose of commercial advertising.
In short, while the risks associated with your generous distribution of toys seem limited, parking your animal-drawn vehicle on roofs or breaking into homes at night is not harmless, and these acts could expose you to liability. Readers of Tribune de Genève who have such burning questions should not hesitate to send them from 27 January 2014 to the undersigned, who wishes you all a Merry Christmas and a Happy New Year!
