(12) This Directive should only apply to tangible movable items that constitute goods within the meaning laid down in this Directive.
Member States should therefore be free to regulate contracts for the sale of immovable property, such as residential buildings, and its main components intended to constitute a major part of such immovable property.
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(34) A large number of goods have to be installed before they can be used effectively by the consumer.
In addition, in the case of goods with digital elements, the installation of the digital_content or digital_service is usually necessary for the consumer to be able to use such goods in line with their intended purpose.
Therefore, any lack of conformity resulting from an incorrect installation of the goods, including from the incorrect installation of the digital_content or digital_service incorporated in or inter-connected with the goods, should be regarded as a lack of conformity, where the installation was performed by the seller or under the seller's control.
Where the goods were intended to be installed by the consumer, a lack of conformity resulting from incorrect installation should be regarded as a lack of conformity of the goods, irrespective of whether the installation was performed by the consumer or by a third party under the consumer's responsibility, if the incorrect installation was due to shortcomings in the installation instructions, such as incompleteness or a lack of clarity making the installation instructions difficult to use for the average consumer.
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(45) For a period of one year, or for a period of two years if Member States choose to apply a two-year period, the consumer should only need to prove that the good is not in conformity, without also needing to prove that the lack of conformity actually existed at the relevant time for establishing conformity.
In order to rebut the consumer's claim, the seller would need to prove that the lack of conformity did not exist at that time.
In addition, in some cases the presumption that the lack of conformity existed at the relevant time for establishing conformity could be incompatible with the nature of the goods or the nature of the lack of conformity.
The former could be the case with goods that by nature deteriorate, such as perishable products, for example flowers, or goods which are only intended for a single use.
An example of the latter would be a lack of conformity, which can only be a result of an action by the consumer or of an evident external cause which occurred after the goods were delivered to the consumer.
In the case of goods with digital elements where the contract provides for continuous supply of the digital_content or digital_service, the consumer should not have to prove that the digital_content or digital_service was not in conformity during the respective period of time for establishing conformity.
In order to rebut the consumer's claim, the seller would need to prove that the digital_content or digital_service was in conformity during that period.
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