Query on legal and commercial guarantees

Firstly I would like to congratulate you on your Sunday columns, which make very interesting reading. I was informed that the legal guarantee (two years) is only valid if the purchaser can prove that the item bought has a hidden defect after the commercial guarantee has expired. Since this is the first time that I heard this and never read it in your columns, I would like to ask your opinion about it.

When I went to complain about a trader who did not accept the legal guarantee, I had to drop everything as I was told that I have no claim if I cannot prove that a defect was there when I bought the item. (Johanna Darmanin)

No matter how many articles we feature on this issue, including articles by my friend and adviser Dr David Fabri (lecturer in Consumer Law at the University of Malta), we still have too many rogue traders who relentlessly persevere, and unfortunately succeed, in their efforts to exploit consumer ignorance on this issue by misleading and confusing them.

So, yet again, I must clarify the issue. I have no intention to give up in my repeated efforts to drive the point home on this perennial issue.

There are two types of guarantee: the legal guarantee and the commercial guarantee. These guarantees are totally separate and the statement that "the legal guarantee (two years) is only valid if the purchaser can prove that the item bought has a hidden defect after the commercial guarantee has expired" is absolutely wrong and completely misleading.

There is no link whatsoever between the legal guarantee and the commercial guarantee. It is expressly stated in the 1994 Act that the commercial consumer guarantee can only increase or add to the legal consumer guarantee (e.g.: by increasing it from two to three years), but not reduce or limit it in any way (e.g., by reducing it to a single year or six months).

Legal guarantee

The legal guarantee is valid for two years and protects the consumer against a latent, or hidden, defect. In layman's terms a latent defect is a fault that cannot be seen when the item is bought.

In this context, the consumer is protected so that if the latent defect comes through within two years from the date of purchase, the trader is legally obliged to rectify the defect at no cost to the consumer.

I stress that the case submitted by Ms Darmanin is clearly one involving a latent defect and the trader involved is legally obliged to rectify it. If it is not possible to rectify the defect, the respective trader must replace the defective item with a new one.

In cases in which the trader replaces the faulty item with a new item, it does not mean that the warranty is extended by another two years. We had cases in which consumers were under the impression that the expiry date of the replacement item is two years from the date of replacement. This is not the case.

The expiry date remains the same, based on the original date of purchase. We had a case in which the trader replaced the item in question a few days before the legal guarantee expired.

Commercial guarantee

On the other hand, the commercial guarantee is totally separate from the legal guarantee. Indeed as Dr Fabri aptly put it in an article he wrote about legal and commercial guarantees: "The two are entirely unconnected." Traders are not obliged to offer a commercial guarantee.

The commercial guarantee is there to give traders an opportunity to offer consumers a better service than other traders they compete with in the marketplace. However, what is happening is the opposite.

Unlike the legal guarantee, which is valid for two years, no matter what, the validity period of the commercial guarantee is up to the trader who is offering that guarantee.

In the prevailing scenario many traders offer a commercial guarantee valid for six months and, rather than inform consumers about the legal guarantee, which I must repeat is valid for two years, they mislead consumers by informing them that, after six months, they are no longer responsible.

The truth is that after six months, when the commercial guarantee expires, the legal guarantee is still valid for another year and six months.

In the case referred by Ms Darmanin, the trader she is dealing with is legally obliged to rectify the defect in accordance with the legal guarantee.

If it is not possible to rectify the latent defect, the trader is obliged to replace the faulty item with a new one. I appeal to the trader concerned to abide by the law.