Commercial and legal guarantees

Dear Mr Muscat Inglott,

In view of the recent emphasis and interest from the public on the matter of legal guarantees, a line in a car's anti-perforation rust warranty document I signed lately caught my eye. I believe this is a matter of general interest since many other car buyers would have had to sign such documents.

The last line of the document read: "This warranty is in substitution of and to the exclusion of any other warranty which may be contemplated by the law". And I signed my agreement to this document. Even though I would probably have bought the product just the same, had I realised the significance of this at the time of signing, I am wondering whether this is allowed by law especially in view of the following:

1. The warranty covers a full eight years, and not just the two years that would have been covered by the legal guarantee.

2. The warranty covers only perforation with rust, and not any other defect in workmanship (such as rust prior to the perforation stage).

3. The warranty covers only the parts treated with anti-rust, and not the entire body of the automobile.

Also, would this mean that having signed the above, I have renounced my right to a legal guarantee covering other defects in workmanship not related to points 2 and 3 above, non- perforating rust, or rust in parts not treated with anti-rust, or even faults in the paintwork that do not lead to rust?

Should you want to see the entire document, I will send you a copy.

By the way, though you may at times feel that yours is a "thankless job", as you have recently written in the paper, I am sure that there are many who are silently thankful for your relentless work and campaigns to educate the public. I have had the occasion to ask you questions and refer complaints to you in the past, and have always been very satisfied with the outcome. I am sincerely grateful. (Dr Kristian Zammit, MD)

This is another example of traders exploiting the gross lack of consumer awareness regarding guarantees from a legal point of view. This is a perennial issue and, no matter how often we explain it, many consumers are still asking about guarantees, so I feel morally obliged to continue explaining.

There are two types of guarantees - the legal guarantee and the commercial guarantee. (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:

"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 means that if, at any stage within two years from purchase, the bought item does not conform to 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. This can also include a replacement, if necessary.

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 stress that:

"Any contractual clauses or agreements 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".

Basically, the legal guarantee cannot be given up or taken away. Indeed a consumer cannot renounce the legal guarantee, no matter what. The trader involved in Dr Zammit's case cannot offer another warranty, as he put it, "in substitution of and to the exclusion of any other warranty which may be contemplated by the law." Moreover, if the trader involved wants to offer another guarantee, he can only offer it over and above the legal guarantee and not instead of it.

On the other hand, commercial guarantees are not obligatory. They are voluntarily offered, in addition to the legal guarantee, on the basis of the principles of a liberalised marketplace wherein traders can try to win custom by offering a better service than other traders. 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 at the traders' discretion, there are traders who offer five-year commercial guarantees. On the other hand, 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 "lack of conformity" means that the item in question "does not perform in accordance with established practice" or, put more simply, does not do what it is supposed to do.

I appeal to consumers who are aware of their rights in this context to explain all this 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 respective traders that you are aware of your rights.

Finally, I thank Dr Zammit for his letter and his kind comments, which are appreciated.