Important provision comes into force

A number of EU directives last year were transposed under the Consumer Affairs Act. The provision regarding one of these directives (99/44), which deals with the sale of consumer goods and associated guarantees, came into force last Monday.

Marcel Pizzuto, PG Dip. (European Competition Law), director-general of the Consumer and Competition Division, has kindly offered to explain what this provision is all about with a particular focus on the rights and obligations it carries with it.

Sale of goods to consumers

Traders are obliged to deliver to consumers goods that are in conformity with the description and specifications in the contract of sale.

The goods must:

¤ comply with the description given by the trader;

¤ possess the characteristics, features and qualities which the trader promised or the consumer saw on a model or sample;

¤ be fit for the purpose the consumer bought them for and which he had made known to the trader; and

¤ be of the quality and performance that are normal in goods of the same type.

The trader must provide a remedy for lack of conformity in the goods at the time of delivery. The consumer decides which remedy to request.

The remedies available are:

¤ that the goods are brought into conformity by repair or replacement, free of charge; and

¤ that the consumer gets a refund of an appropriate reduction in the price or by having the contract rescinded, if he cannot obtain the first option.

The consumer has two years from the delivery of the goods to request the remedies available to him. He must notify the trader of any lack of conformity within two months from when this was detected. The notification must be done either by a judicial act or by a letter sent by registered mail.

Commercial guarantee

A commercial guarantee is an additional guarantee, which puts the beneficiary in a more advantageous position than that established at law.

A commercial guarantee shall not exclude or limit the rights of a consumer under this Act or under any other law. Any such exclusion or limitation shall be null and ineffective.

A commercial guarantee shall be drawn up in writing in a clear and legible manner and in plain language. It must also comply with the following:

¤ be formulated in at least one of the official languages of Malta;

¤ set out the name and address of the guarantor, and clearly state the permanent address of the place of trade or business;

¤ clearly state the contents of the guarantee and the duration of the guarantee from the date of purchase;

¤ clearly specify the manner how a consumer is to proceed to make a claim and to obtain execution of the commercial guarantee;

¤ clearly state whether the commercial guarantee may be transferred to others. Unless stated that it may not, this guarantee may be transferred;

¤ provide a clear description of the goods or services covered by the commercial guarantee;

¤ clearly stipulate what the guarantor undertakes to do if there is a defect in the goods or if the services are not properly carried out; and

¤ state that the consumer enjoys rights at law which are not adversely affected by the guarantee.

If the commercial guarantee does not comply with these requirements, its validity will not be affected and the consumer shall remain entitled to claim under it and require that it be honoured.

The trader or whoever gives the consumer the commercial guarantee is obliged to observe the terms and execution of such guarantee as if he were the guarantor unless he proves that he informed the consumer that he is not the guarantor.

The duration of a commercial guarantee shall be extended for a period equal to the time during which the guarantor had the goods or parts of the goods in his possession to execute the commercial guarantee or as a result of the recall of the goods.

A commercial guarantee mentioned in a statement or advertisement by any person shall be binding on that person even if such guarantee is not specifically mentioned in the contract of sale.

A consumer may institute civil proceedings against a guarantor who fails to observe any of the terms or undertakings stipulated in a commercial guarantee. The court may:

¤ order the guarantor to take such remedial action as may be necessary to observe the terms of the guarantee; or

¤ order the guarantor to perform his obligations under the commercial guarantee to its satisfaction within such period as the Court may establish. The court may also order the guarantor to pay the consumer up to Lm50 for each day that the stipulated date is not complied with.

Replacement of parts and maintenance must be made available to the consumer for a reasonable time from the date of the delivery of the goods. The trader may release himself from this obligation by specifically and expressly warning the consumer in writing before the contract is entered into that he does not supply replacement of parts or maintenance.