No-nonsense commercial guarantees

There are two types of guarantees, namely the legal guarantee and the commercial guarantee. Whenever an item is sold, the consumer is automatically entitled to the legal guarantee, which is valid for two years. The relevant provision in the Consumer Affairs Act, Part VIII, article 78, 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 than others. It is also worth pointing out that although traders are not obliged to offer commercial guarantees, we still have laws regulating them.

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. During this period the consumer is covered against what is legally defined as "lack of conformity" (i.e. something goes wrong with the bought item).

In layman's terms this means that, if at any stage within two years from the date of purchase, the bought item does not conform to its established performance, or 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 bought item brought back into conformity where possible and repair or replace it with a new one. The parties may also agree on a full or partial refund of the price.

As regular readers know, we have a list of five suppliers who actually offer commercial guarantees. Traders mentioned in this list offer coverage for parts and labour for the full guarantee period, during which they will also not charge a callout fee. Moreover, their guarantees conform to the following eight legal conditions. The law stipulates that commercial guarantees must:

1. Be formulated in at least one of the official languages of Malta;

2. Set out the name and address of the guarantor, and clearly state the permanent address of the place of trade or business;

3. Clearly state the contents of the guarantee and the duration of the guarantee from the date of purchase;

4. Clearly specify the manner how a consumer is to proceed to make a claim and to obtain execution of the commercial guarantee;

5. Clearly state whether the commercial guarantee may be transferred to others. Unless stated that it may not, this guarantee may be transferred;

6. Provide a clear description of the goods or services covered by the commercial guarantee;

7. Clearly stipulate what the guarantor undertakes to do if there is a defect in the goods or if the services are not properly carried out;

8. State that the consumer enjoys rights at law, which are not adversely affected by the guarantee.

I had meetings with the suppliers in our list to ensure that they comply with these conditions before resuming regular publication of the list. However, over and above these conditions, I added some more to which suppliers had to adhere to qualify for inclusion in the list. It proved to be a laborious task but well worth the effort, even though, in the process, some companies were removed from the list, which was reduced from nine to five.

However, in the prevailing scenario, consumers get a better deal from the suppliers in our list. For example, the law allows suppliers not to make the guarantee transferable as long as they inform the buyers. In fact the current law only obliges suppliers to inform buyers whether the guarantee is transferable or not. So when suppliers do not inform consumers that the guarantee is not transferable, it can be assumed that it is transferable. However, suppliers in our list must agree to make their guarantee transferable.

With regard to bulky appliances, if the customers of suppliers in our list come up against faults or breakdowns during the guarantee period, they can call the suppliers. Should it not be possible to sort the problem out on the telephone, the suppliers will call at their customer's address and no 'call-out' fee will be charged.

Another important aspect of the guarantees of suppliers in our list is that they offer coverage for parts, labour, and transport for the full guarantee period. If you have a problem with these suppliers regarding their guarantee terms and conditions, as outlined above, write to me and, if it transpires that they are not in conformity, they will be removed from the list. If it turns out to have been a misunderstanding, we have a meaningful dialogue with the managing directors or general managers of these companies and we should be able to sort out any problems. This is the list of suppliers:

Aplan Ltd: Managing director Alex A. Mizzi; general manager Lino Apap; head office (and outlet): Aplan Centre, Birkirkara Bypass, Birkirkara BKR14. tel: 2148-0590, fax: 2148-0598; e-mail: info@aplan.com.mt

Centro Casalinga: Managing director: Jacques Scerri; head office: J.J. Scerri Co. Ltd, Rainbow Street, Msida MSD 10; tel: 2125-0980/1/2; fax: 2123-5942; e-mail: sales@jjscerri.com

Forestals (Appliances) Ltd: Managing director: Tancred Tabone; Head office: 110, The Strand, Sliema SLM07, tel: 2343-6000; fax: 2134-4709; e-mail: info@forestals.com; Website www.forestals.com

Oxford House Ltd: Managing director John Galea; general Mmnager: Marco Galea; head office and outlet: Notabile Road, Mriehel BKR 14; tel: 2144-2334; fax: 2148-8656; e-mail: info@oxfordhouse.com.mt

The Phoenix Group: Managing director: Steve Petroni; head office (and outlet): Old Railway Track, St Venera, HMR 16; tel: 2385-2200; servicing department: 2385-2300; fax: 2144-9216; e-mail: info@phoenixgroupmalta.com; Website: www.phoenixgroupmalta.com