Commercial and legal guarantees

Traders are exploiting consumers' ignorance on guarantees. I am still receiving queries on guarantees and I must do all that I can to rectify the situation accordingly. Indeed this is a perennial issue and, no matter how often I explain it, too many consumers are still asking about guarantees. In the prevailing scenario, all I can do is to boringly continue explaining till I'm blue in the face. Here follows a brief, to the point, query I received last week:

I congratulate you on your very interesting and helpful column. Can you please tell me if there are any mobile phone shops who give a two-year guarantee? In fact it is very hard to find any. I have tried in our area (Fgura and Zabbar), to no avail. (Victor Caruana)

There are two types of guarantees, namely the legal guarantee and the commercial guarantee (Maltese Laws Chapter 378, Consumer Affairs Act Articles 56-93). 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."

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 with its established performance, or the item does not correspond to what the consumer ordered, the seller is legally obliged to provide a remedy, free of charge.

Moreover, since it had been anticipated that rogue traders might try to evade this issue through contractual clauses, the law 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. They are voluntarily offered on the basis of the principles of a liberalised marketplace in which traders have the opportunity to try to win consumers' custom by offering a better service than others.

This means that, when traders offer a commercial guarantee, the consumer is still entitled to the legal guarantee. The commercial guarantee is meant to increase and improve consumers' rights and most definitely not to 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-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 in which the consumer is covered against what is legally defined as "lack of conformity". In layman's terms "lack of conformity" means that the item in question "does not perform in accordance with established practice" or, more simply, does not do what it is supposed to do.

In fact when I'm shopping and traders tell me that whatever I am buying is guaranteed for six months I normally briefly point out that it is valid for two years. However, in my most recent purchase, when the shop owner informed me that the guarantee was for six months, I boringly gave him a thorough lecture on legal and commercial guarantees.

I appeal to consumers who are aware of their rights in this context to explain the above to other consumers who may not be aware. Finally, when you are shopping, once you decide what you are going to buy, make it clear to the traders concerned that you are aware of your rights.