Legal and commercial guarantees

Unfortunately, although we keep harping on this issue, many traders persist in taking advantage of consumer ignorance and mislead consumers into believing that they can offer six-month guarantees and nothing else. Further to last Sunday's piece under the above heading, this is the final piece on guarantees by Dr Fabri.

The Civil Code - latent defect

If the buyer is not a consumer or the seller is not a trader, e.g. a trader buying for purposes of resale or a professional purchasing an item for his office, then the old Roman Law-based warranties alone would apply. The Consumer Affairs Act would not apply in this instance.

The Civil Code provisions include the actio redibitoria available for six months from when a hidden defect is (or can be) detected. The notion of hidden or latent defect is at the core of this Civil Code remedy. Originally, this remedy had to be availed of within just one month. Happily, this unduly short period was increased to six months a few years ago.

So far so good. Let us now start to complicate things further here.

Action on quality

In a particular scenario, even the Civil Code itself raises a two-year period of warranty to deal with possible cases where a seller supplies goods to a purchaser which are not of the quality or type that had been agreed between them. This remedy, which is different and independent from the latent defect remedy, is available to the consumer. It too derives from Roman law. But it relates to quality (kwalità patwita) rather then defectiveness. The two remedies are therefore quite separate and derive from different legislation.

Enough said about the two-year guarantees. Let us now consider the six-month warranty and other six-month periods mentioned in the law in the context of sales of goods. This may have given rise to some confusion.

Six-month probative period

A feature that has caused some interpretation difficulties is a new six-month period recently inserted in one of the articles of the 1994 Act. Article 80 establishes a (rebuttable) probative presumption in favour of a consumer who has detected some deficiency in the conformity of the good purchased within the first six months from delivery of the goods.

This presumption merely presumes that the non-conformity existed at the date of delivery of the article purchased. This presumption is not absolute and can be swept away by the seller producing evidence to the contrary.

It is also subject to some specific qualifications so that, in my view, it would not apply to articles sold as new in the same manner as it would apply to second hand goods bought at a reduced price.

Notwithstanding this presumption, the two-year guarantee mentioned above remains unaffected and carries on regardless. The six-month period does not affect the length of the guarantee. It merely implies (perhaps rightly) that the longer a defect is detected, the greater the burden placed on the consumer to try to persuade a court that the defect existed at date of delivery. But this was always the case.

Like any other claimant, a consumer would be expected to bring evidence and prove to a court that his claims are valid and correct, and that he bought a product which he later detected to lack conformity with what the law requires.

This six-month period raises a rebuttable presumption that the defect existed at the time of delivery, and that's all. The trader may be able to prove the contrary, namely that the goods were perfectly okay and in conformity at the time they were delivered to the consumer.

I suspect that some people may have read too much into this presumption. Clearly, it is one thing to complain about a defective product after a few days or weeks from purchase, and quite another to try to make a case after a number of years from purchase.

Therefore, article 80 need not confuse us unduly as it only affects what and how a consumer would have to prove his claim. (We find a similar procedural device under the product liability rules.) These are devices intended to facilitate the level of proof to be established by a claiming consumer. But they neither reduce nor lengthen the prescription period for the exercise of the guarantee.

Two final points:

(a) Some minds confuse this six-month period under article 80 with the six-month period mentioned in the Civil Code law of sale rule governing the exercise the latent defects remedy. The two are entirely unconnected.

(b) I have not mentioned commercial guarantees here because it is expressly stated in the 1994 Act that the commercial consumer guarantee can only increase or add to the legal consumer guarantees (say by increasing it from two to three years), but not reduce or limit it in any fashion (say by reducing it to a single year).

Dr Fabri is a lecturer in Consumer Law at the University of Malta.