Legal and commercial guarantees

Since we still have rogue traders who exploit consumer ignorance on legal and commercial guarantees (Consumer Affairs Act, Articles 56-93), for the umpteenth time, I have to clarify matters on this issue.

There are rogue traders who, on one hand, offer a commercial guarantee which expires six months from the date of purchase while, on the other hand, they mislead consumers into believing that there is no legal guarantee.

This is wrong and I find it highly disturbing to note that, although I have often referred to this issue, this is still happening. Therefore I must yet again explain the following:

There are two types of guarantees - the legal guarantee and the commercial guarantee. In a trader-consumer transaction (i.e. an item sold by a trader to a consumer) the consumer is automatically entitled to the legal guarantee, which is valid for two years. The relevant provision is in the Consumer Affairs Act, Article 78, which clearly stipulates that:

"The trader shall be liable under the provisions of articles 73 and 74 where the lack of conformity becomes apparent to the consumer within two years from the delivery of the goods. This period of prescription shall be suspended for the duration of negotiations carried on between the trader and the consumer with a view to an amicable settlement."

Moreover, since it had been anticipated that rogue traders might try to evade this issue through contractual clauses, the law further drives the point home, and in Article 81 it is stressed that:

"Any contractual clauses or agreement concluded by the consumer with the trader before the lack of conformity is brought to the attention of the trader, are not binding on the consumer if such clauses or agreement directly or indirectly waive or restrict the rights available under this Part."

On the other hand commercial guarantees are not obligatory, but voluntary. They are offered on the basis of the principles of a liberalised marketplace in which traders try to win our custom by offering us a better service then other traders.

This means that, when traders offer a commercial guarantee, the consumer is still entitled to the "legal" guarantee. A commercial guarantee can only increase and improve a consumer's rights and most definitely not replace or reduce them.

While bearing in mind that the duration of commercial guarantees is subject to the traders' discretion, some rogue traders offer a commercial 'six months' guarantee and mislead consumers into believing that, after six months, the trader is no longer liable. However the truth is that, after six months, the legal guarantee would still be valid for a further year and a half and the consumer is covered against what is legally defined as "lack of conformity".

In layman's terms this concept means that, if at any stage within two years from the date of purchase, the bought item does not conform to its established performance, or does not correspond to what the consumer ordered, the seller is legally obliged to provide a remedy, free of charge. In a nutshell, the seller must have the bought item brought back into conformity where possible and repair or replace the item. The parties may also agree on a full or partial refund of the price.