Legal and commercial guarantees

NO MATTER how many times I explain the "legal and commercial guarantees", I am still inundated with queries on this issue. Since rogue traders continue to exploit consumers' ignorance on this matter, I will yet again explain and I will continue to explain till I am blue in the face.

Here follow two excerpts from typical queries:

"What exactly is the legal guarantee? I was given a six-month guarantee."

"After eight months my electric shaver wouldn't work and I was told that the guarantee expired two months ago."

Some traders on one hand offer a commercial guarantee, which expires after six months from the date of purchase, while on the other they mislead consumers into believing that there is no legal guarantee. This is wrong and I find it highly disturbing to note that, despite having referred to this issue on so many occasions, this is still happening. Therefore I must yet again explain.

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, Part VIII, 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 article 81 stresses 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 market place wherein 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 legally 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, there are rogue traders who offer a commercial 'six-month' 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 wherein 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 purchased item does not conform to the established performance which it is supposed to give, or the item 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 item brought back into conformity where possible and repair or replace the purchased item with a new one. The parties may also agree on a full or partial refund of the price paid.