Get your money back

Michael Pullicino writes:
I am a Maltese national working in Italy for six months.
Since we do not have a fixed telephone line in our apartment, I had to buy a mobile internet connection for my laptop. I decided to buy a mobile modem in Malta for Lm128. The sales assistant guaranteed a fast internet service. However, this internet connection is giving me problems. I have tried it in Treviso, Venice and Vicenza. It always gives the same problem. More often than not it does not work and I am stuck without an internet connection.
I contacted the customer care and they told me that such mobile connections do give problems similar to mine! They told me the modem is functioning properly, however there is a problem with the network. Now had I known this before I would not have purchased it in the first place.
My question is: Do I have the right to claim the money back?
The invoice says the modem comes with 12 months warranty for defects but it appears that the problem is coming from their network and not from the modem. In this case, the shop owner will tell me the modem is functioning properly. What remedy do I have? Is it possible to return the modem to the seller?

I would argue that once the modem is not fit to be used for the purpose for which you bought it, you should be able to return it and claim your money back, even if the problem is not with the modem as such but with the network on which the functioning of the modem is dependent. For, clearly, you did not buy the modem for its own sake but to use it for internet access.

Under EU law the seller must deliver goods to the consumer which are in conformity with the contract of sale. Consumer goods are presumed to be in conformity with the contract if they comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model. But they must also be fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller accepted.

If you made it known to the sales assistant that you wanted the modem to be able to use it for an internet connection abroad and if the assistant guaranteed to you that it would work, then you should be able to argue that the product was not fit for the particular purpose for which you intended it and which you had made known to the seller at the time of the purchase.

So the issue is not so much with the quality and performance of the modem but with it not being able to perform the function for which you bought it.

On the other hand, there would be no lack of conformity if at the time of purchase you were aware, or could not reasonably be unaware, of the lack of conformity. I doubt that this could have been the case since, as you state, had you known that the network would give you problems you would not have bought the modem in the first place.

As to your remedy, EU law goes on to state that the seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

Therefore, in the case of lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods.

In the first place, you may require the seller to repair the goods or to replace them, in either case free of charge. In your case, it is clear that there is no question of repairing the product, because it works well, nor of replacing it, as the problem lies with the network.

The law goes on to state that the consumer may require an appropriate reduction of the price or have the contract rescinded (a) if the consumer is entitled to neither repair nor replacement, or (b) if the seller has not completed the remedy within a reasonable time, or (c) if the seller has not completed the remedy without significant inconvenience to the consumer.

When one applies the above to your specific situation, I would say that there is a case to be made in the sense that you may request that the contract be rescinded and ask for your money back - since the modem is not in conformity with the contract of sale once you had made it clear to the sales assistant why you required the modem and you obtained the necessary assurance from the sales assistant that you would get a fast internet connection.

Since the modem itself is not defective, you cannot therefore seek to have it repaired or replaced - you can only seek to have the contract of sale rescinded and ask for your money back.

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