I think this case is interesting and everyone should know more of the details before even commenting. I took the liberty to do a quick translation (with reservations for errors) of the consumer board and the court summary. (Wikipedia uses Sales of Goods Act as the English title of Købeloven, so I will use it as well, a more correct translation would probably be Purchase of Goods Act.) The expert is an impartial competent expert of the technical matter appointed by the consumer board. The wording "genproducered" I have translated to refurbished, but in the boards text the word "remanufactured" is used and therefore not translated.
Consumer board: http://www.forbrug.dk/Afgoerelsesda...ng-med-mobiltelefon-som-indeholdt-brugte-dele
"Replacement with a cell phone containing used parts. 18th July 2014.
A replacement for a used cell phone, which contained used parts, was not in accordance to the Sales of Goods Act (Købeloven). The consumer has therefore the right to cancel the purchase.
The consumer bought a factory new iPhone, which during a year and a half was replaced twice with a phone containing used parts. After the second time being informed that the new phone contains used parts, he complained to the business because he had bought a brand new iPhone. The case was brought to the consumer complaint board, who have made the following ruling:
'This case concerns whether the business has replaced the phone in accordance to the Sales of Goods Act §78, when issuing a refurbished iPhone as a replacement, and whether the consumer in this case is entitled to demand his original phone repaired and returned, replacement with a new phone, or a cancelation of the purchase agreement.
The consumer informs, that he on 16th July 2011 bought an iPhone on the business' website. About 1 year later the phone was replaced due to a faulty home button.
At the end of November 2012 the consumer complained about recurring faults in the mute button.
The business tried to repair the phone, but as did not solve the problem, did the replace it. When the consumer received the latest phone he was informed that it was refurbished. The consumer demanded then to have his original phone back and repaired or replace it with a factory new iPhone, which was refused by the business.
The consumer has demanded his original phone repaired and returned, replacement of a brand new iPhone, or a cancelation of the purchase.
The business has refused the consumer's demands, as they have provided a replacement according with the Sales of Goods Act § 78. The business has informed, that delivered replacement phones, all was remanufactured. They have as well informed that remanufactured phones have new external parts, but may have used internal parts, including the forward camera, back camera, earpiece speaker, logic board and vibrator.
The business has in its support that the replacement was according to the Sales of Goods Act § 78, that the act legislative preparation do not prohibit replacement with a remanufactured product, that consumers who are offered such product, stands better off, than if they have been provided a repair of the originally bought product, including a new two years complaints period accordance with the Sales of Goods Act.
From the experts opinion, a remanufactured phone may contain new and used internal components. The expert also says that it does not affect the components appearance, durability, usability and sales value that they are reused.
Moreover, the expert states that the remanufactured phone have a lower sales value, as it is actually not a factory new telephone.
According to the Sales of Goods Act, the seller may avoid a buyers demand for reduction in price or cancelation of purchase, by offering a repair or replacement (§ 78 part 3). It is however a prerequisite that the seller is able to provide a goods, which is per the original purchase agreement. (§ 78 part 3 -> § 78 pt 3 sub 2). Fulfillment of repair or replacement should be within reasonable time, otherwise the buyer will retain its right to cancel the purchase (§ 78 part 4).
The board has based its decision, that the original purchase agreement provided a purchase of a factory new phone.
It is the boards assessment that the business did not offer replacement according to the Sales of Goods Act § 78. The board has emphasized that there has been a replacement with a phone which according to the business contains used parts. As the business still hasn't offered the consumer a replacement according to the provisions of the Sales of Goods Act, the board furthermore assess that the business did not provide a replacement within reasonable time.
The consumer is therefore entitled to cancelation of the purchase.'"
The Glostrup lower court:
"
Decision in a case of replacement with a "refurbished" iPhone 4 with reused modules
09-12-2016
Court in Glostrup has on 9th December 2016 passed a judgment in a case between Apple and the consumer who in June 2011 had bought a new iPhone 4. After several complaints Apple replaced in November 2012 with another iPhone 4, which later was disclosed to be a refurbished iPhone 4.
Apple has stated during the proceedings that a refurbished iPhone is a product that may contain some reused modules, but also produced and tested in the same way as an iPhone containing only new modules. A refurbished iPhone may also contain only new modules.
Apple has further stated that a refurbished iPhone 4 at that time, would contain up to 5 specified reused functional modules and up to 8 specified reused external modules, but that it is not possible to say whether, or to what extent the case is for each phone. Apple has further stated that typically it was rare that the outer modules were reused. Furthermore the reused modules would beforehand had to undergo rigorous tests and strict quality control.
As the consumer become aware that Apple had replaced with an iPhone 4 that was not brand new, he asked to get the iPhone 4, he had delivered, repaired, or that he got it replaced with a brand new iPhone 4, understood as a phone not containing reused parts.
Apple did not comply with the demand, so the consumer took the case to the Consumer Complaints Board.
During the proceedings, the Board was seeking the opinion of an IT expert. The IT experts stated, that the modules used in the refurbished iPhone 4 had the same appearance, usability, durability and sale value as new modules, as well as a refurbished phones have an appearance, a durability and usability, which corresponds to a brand new phone, but has a lower resale value.
The Board ruled in the case July 14th, 2014 and said that the consumer was entitled to cancel the contract. The Board stated that Apple had not made replacement in accordance with the Sale of Goods Act § 78, as it was replaced with a phone that contained used modules.
As Apple disagreed with the Board's decision, Apple brought the case before the Court in Glostrup, where the case has been tried by the involvement of three judges. There has now been delivered a judgment in the case and the court reached the same conclusion as the Consumer Complaints Board. Apple was therefore not entitled to replace them with a so called refurbished phone, as this may contain some reused modules, and the consumer were right in canceling the agreement.
From the court's reasoning:
'...
In assessing whether Apple made a proper replacement, it must be given weight if replacement with a refurbished iPhone using an objective assessment meets the offer given in the original agreement.
In the examination there must - in addition to the phone's usability, appearance, durability and technical reliability - also emphasis the consumer's legitimate expectations to the replaced phone, as well as there must be considerations of economic value.
It is not seen in the preparatory work for the Sale of Goods Act, or reasons to include environmental considerations, in assessing whether a replacement product qualifies for the Sale of Goods Act § 78 part 1 subpart 2. The fact that environmental concerns can speak for the recycling of reusable modules and components production in general, is not relevant in determining whether a replacement product complies with the agreement.
After an overall assessment, the court finds that David Lysgaard by replacement had a legitimate expectation of receiving a brand new product equivalent to the original purchase. Since the refurbished phone that David Lysgaard was given could contain reused modules, the phone can not qualify as a brand new phone. In addition, as stated above, that the circumstance that the phone was not brand new, by information given, affects the phone sales value.
Replacement with a refurbished iPhone therefore did not match the original purchase agreement, as required under the Sale of Goods Act § 78 part 1 sub 2.
David Lysgaard has rightly canceled the agreement under the Sale of Goods Act § 78 part 4. David Lysgaard should be acquitted as indicated.
... '
Case number BS 10E-3689/2014.
"
Consumer board: http://www.forbrug.dk/Afgoerelsesda...ng-med-mobiltelefon-som-indeholdt-brugte-dele
"Replacement with a cell phone containing used parts. 18th July 2014.
A replacement for a used cell phone, which contained used parts, was not in accordance to the Sales of Goods Act (Købeloven). The consumer has therefore the right to cancel the purchase.
The consumer bought a factory new iPhone, which during a year and a half was replaced twice with a phone containing used parts. After the second time being informed that the new phone contains used parts, he complained to the business because he had bought a brand new iPhone. The case was brought to the consumer complaint board, who have made the following ruling:
'This case concerns whether the business has replaced the phone in accordance to the Sales of Goods Act §78, when issuing a refurbished iPhone as a replacement, and whether the consumer in this case is entitled to demand his original phone repaired and returned, replacement with a new phone, or a cancelation of the purchase agreement.
The consumer informs, that he on 16th July 2011 bought an iPhone on the business' website. About 1 year later the phone was replaced due to a faulty home button.
At the end of November 2012 the consumer complained about recurring faults in the mute button.
The business tried to repair the phone, but as did not solve the problem, did the replace it. When the consumer received the latest phone he was informed that it was refurbished. The consumer demanded then to have his original phone back and repaired or replace it with a factory new iPhone, which was refused by the business.
The consumer has demanded his original phone repaired and returned, replacement of a brand new iPhone, or a cancelation of the purchase.
The business has refused the consumer's demands, as they have provided a replacement according with the Sales of Goods Act § 78. The business has informed, that delivered replacement phones, all was remanufactured. They have as well informed that remanufactured phones have new external parts, but may have used internal parts, including the forward camera, back camera, earpiece speaker, logic board and vibrator.
The business has in its support that the replacement was according to the Sales of Goods Act § 78, that the act legislative preparation do not prohibit replacement with a remanufactured product, that consumers who are offered such product, stands better off, than if they have been provided a repair of the originally bought product, including a new two years complaints period accordance with the Sales of Goods Act.
From the experts opinion, a remanufactured phone may contain new and used internal components. The expert also says that it does not affect the components appearance, durability, usability and sales value that they are reused.
Moreover, the expert states that the remanufactured phone have a lower sales value, as it is actually not a factory new telephone.
According to the Sales of Goods Act, the seller may avoid a buyers demand for reduction in price or cancelation of purchase, by offering a repair or replacement (§ 78 part 3). It is however a prerequisite that the seller is able to provide a goods, which is per the original purchase agreement. (§ 78 part 3 -> § 78 pt 3 sub 2). Fulfillment of repair or replacement should be within reasonable time, otherwise the buyer will retain its right to cancel the purchase (§ 78 part 4).
The board has based its decision, that the original purchase agreement provided a purchase of a factory new phone.
It is the boards assessment that the business did not offer replacement according to the Sales of Goods Act § 78. The board has emphasized that there has been a replacement with a phone which according to the business contains used parts. As the business still hasn't offered the consumer a replacement according to the provisions of the Sales of Goods Act, the board furthermore assess that the business did not provide a replacement within reasonable time.
The consumer is therefore entitled to cancelation of the purchase.'"
The Glostrup lower court:
"
Decision in a case of replacement with a "refurbished" iPhone 4 with reused modules
09-12-2016
Court in Glostrup has on 9th December 2016 passed a judgment in a case between Apple and the consumer who in June 2011 had bought a new iPhone 4. After several complaints Apple replaced in November 2012 with another iPhone 4, which later was disclosed to be a refurbished iPhone 4.
Apple has stated during the proceedings that a refurbished iPhone is a product that may contain some reused modules, but also produced and tested in the same way as an iPhone containing only new modules. A refurbished iPhone may also contain only new modules.
Apple has further stated that a refurbished iPhone 4 at that time, would contain up to 5 specified reused functional modules and up to 8 specified reused external modules, but that it is not possible to say whether, or to what extent the case is for each phone. Apple has further stated that typically it was rare that the outer modules were reused. Furthermore the reused modules would beforehand had to undergo rigorous tests and strict quality control.
As the consumer become aware that Apple had replaced with an iPhone 4 that was not brand new, he asked to get the iPhone 4, he had delivered, repaired, or that he got it replaced with a brand new iPhone 4, understood as a phone not containing reused parts.
Apple did not comply with the demand, so the consumer took the case to the Consumer Complaints Board.
During the proceedings, the Board was seeking the opinion of an IT expert. The IT experts stated, that the modules used in the refurbished iPhone 4 had the same appearance, usability, durability and sale value as new modules, as well as a refurbished phones have an appearance, a durability and usability, which corresponds to a brand new phone, but has a lower resale value.
The Board ruled in the case July 14th, 2014 and said that the consumer was entitled to cancel the contract. The Board stated that Apple had not made replacement in accordance with the Sale of Goods Act § 78, as it was replaced with a phone that contained used modules.
As Apple disagreed with the Board's decision, Apple brought the case before the Court in Glostrup, where the case has been tried by the involvement of three judges. There has now been delivered a judgment in the case and the court reached the same conclusion as the Consumer Complaints Board. Apple was therefore not entitled to replace them with a so called refurbished phone, as this may contain some reused modules, and the consumer were right in canceling the agreement.
From the court's reasoning:
'...
In assessing whether Apple made a proper replacement, it must be given weight if replacement with a refurbished iPhone using an objective assessment meets the offer given in the original agreement.
In the examination there must - in addition to the phone's usability, appearance, durability and technical reliability - also emphasis the consumer's legitimate expectations to the replaced phone, as well as there must be considerations of economic value.
It is not seen in the preparatory work for the Sale of Goods Act, or reasons to include environmental considerations, in assessing whether a replacement product qualifies for the Sale of Goods Act § 78 part 1 subpart 2. The fact that environmental concerns can speak for the recycling of reusable modules and components production in general, is not relevant in determining whether a replacement product complies with the agreement.
After an overall assessment, the court finds that David Lysgaard by replacement had a legitimate expectation of receiving a brand new product equivalent to the original purchase. Since the refurbished phone that David Lysgaard was given could contain reused modules, the phone can not qualify as a brand new phone. In addition, as stated above, that the circumstance that the phone was not brand new, by information given, affects the phone sales value.
Replacement with a refurbished iPhone therefore did not match the original purchase agreement, as required under the Sale of Goods Act § 78 part 1 sub 2.
David Lysgaard has rightly canceled the agreement under the Sale of Goods Act § 78 part 4. David Lysgaard should be acquitted as indicated.
... '
Case number BS 10E-3689/2014.
"
