Legal guarantee valid for two years

No matter how often I refer to this issue with a particular focus on the fact that the legal guarantee is valid for two years, many traders intentionally ignore this and mislead consumers.

What makes it worse is that many traders manage to persuade consumers that the items they sell are only guaranteed for six months or perhaps one year. Unfortunately, many rogue traders exploit consumer ignorance on legal and commercial guarantees (Maltese Laws Chapter 378 Consumer Affairs Act Articles 56-93).

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

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 in article 81 it is stressed:

"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 marketplace in which traders try to win consumers' custom by offering a better service than other traders.

This means that, when traders offer a commercial guarantee, the consumer is still legally 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, there are rogue traders who offer a commercial six months' guarantee and mislead consumers into believing that, after six months, the trader is no longer liable.

The truth is that, after six months, the legal guarantee would still be valid for a further year and a half during which the consumer is covered against what is legally defined as "lack of conformity".

In laymen's terms this concept 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 restored to conformity where possible and repair or replace it with a new one. The parties concerned may also agree on a full or partial refund of the price paid.

Unfortunately, there are rogue traders who, on one hand, offer a commercial guarantee, which expires after six months from the date of purchase, while, on the other hand, they mislead consumers into believing that there is no legal guarantee.

This is wrong and I find it highly disturbing to note that, despite having referred to this issue on so many occasions, this is still happening. Therefore, while I will regularly continue explaining all this, I appeal to consumers who are aware of their rights in this context to explain this to other consumers who may not be aware.