Legal guarantee - valid for two years

This letter was sent to the Editor, who referred it to me:

Reference is made to Adrian Muscat Inglott's comments on the legal guarantee in the 'Customer Service Column' of November 5.

Further clarifications need to be made on a trader's obligation to rectify a latent defect at no cost to the consumer within two years from the date of purchase.

Directive 1999/44/EC, which has been implemented in Malta by Chapter 378 of the Laws of Malta (the Consumer Affairs Act), provides a consumer with a minimum guarantee of two years on products from date of delivery.

However, this guarantee is unconditional only for the first six months from the date of delivery of the product, after which the onus probandi of establishing that a defect existed at the time of delivery shifts onto the consumer.

The directive provides a legal presumption in favour of the consumer that a latent defect, which becomes apparent within the first six months from delivery, actually existed at the time of delivery.

After that period the consumer shall have to prove that the defect was there at the time of delivery in order to benefit from the legal guarantee within the remaining 18 months. (Jean-Karl Farrugia, LL.D.)

This is a highly important issue worth highlighting, particularly while bearing in mind the extent to which so many traders exploit the confusing aspect regarding this issue with a view to confusing consumers. I referred Dr Farrugia's letter to Dr David Fabri and here are his comments on this drawn-out issue:

The rule that a plaintiff (i.e., a person who brings a case against another in court) must prove his case is still there and this applies also to a consumer who needs to prove a claim against a trader.

The six-month period, which has caused so much confusion to so many, is simply a probative presumption in favour of a claimant but does not by itself provide a solid remedy for any shape and kind of lack of conformity that may arise.

In any case the new concept introduced in the Consumer Affairs Act now is "lack of conformity" (which includes but is not restricted to latent defects). The new concept originates in the EU Directive which the Act had transposed.

The warranty for latent defects arises under the Civil Code and different parameters and conditions apply. This area of the law is more complicated than most imagine, and one tries to simplify matters at some risk. (David Fabri, LL.D.)

I thank Drs Farrugia and Fabri for their comments. As can be seen, this issue will continue to be exploited by rogue traders to confuse consumers. I am constantly inundated with queries on the perennial 'guarantees' issue. Here is one of the many queries I receive regularly:

Hope you are fine and thanks for the great job on your Website and all other local media. When discussing consumer rights we often hear interchangeably "commercial guarantee" and "legal guarantee".

It's a bit confusing sometimes to understand exactly the particulars of these two guarantees. How do these two apply when, for example, buying hi-fi equipment? (Neville Borg)

I am fine, thank you. Yes, you are right, Mr Borg; it is confusing. As Dr Fabri aptly put it, "this area of the law is more complicated than most imagine". This is why traders exploit the situation.

Therefore, for the umpteenth time, I will attempt to simplify rather than confuse the issue on the legal guarantee and the commercial guarantee. The following applies to all items under guarantee, including hi-fi equipment.

The legal guarantee is compulsory and is valid for two years, no matter what. The only document you need for the legal guarantee is the receipt applicable to the bought item. If, unfortunately, you lose your receipt, you still have the right to the legal guarantee but I recommend that you keep the receipt in a safe place to avoid problems.

In a nutshell, the legal guarantee protects the consumer against a latent defect (i.e., a fault in the bought item that cannot be seen when bought). In cases in which the bought item stops functioning due to a defect which cannot be seen, the consumer must refer the bought item to the seller and the seller is obliged to repair or replace the item in accordance with the legal guarantee.

On the other hand, the commercial guarantee is not compulsory. Traders are not legally obliged to offer a commercial guarantee. Another difference between the legal and commercial guarantees is that, while the validity period of the legal guarantee is always two years, it is up to the trader to decide and determine the validity period of the commercial guarantee.

It is also up to the trader to decide and determine what terms and conditions to offer for the commercial guarantee. The terms and conditions must be included in the commercial guarantee given to the consumer.

Unfortunately, however, what is happening is that many traders are exploiting consumer ignorance. First of all, they do not make any reference to the legal guarantee. On the other hand, they give the consumer a commercial guarantee valid for six months and they mislead that consumer into believing that, after six months, it is over.

However, after six months there is still the legal guarantee, which is valid for a further year and six months (i.e., two years). Indeed, as Dr Fabri aptly put it: "The six-month period has caused so much confusion to so many."

I would add that many traders are benefiting from the confusion.