Do bargains carry special terms and conditions which can influence cooling off periods and guarantees?

Any item purchased, even at reduced prices, is covered by law

Cooling off periods are legally granted to consumers when they purchase goods or services either through distance or doorstep selling. Distance selling includes purchases made via internet, telephone, teleshopping, and catalogue shopping. During such sales the seller and the buyer do not physically meet. With regards to doorstep selling, this usually takes place at a consumer’s home or place of work, or at any place or premises away from the business premises of the door-to-door seller, or of the trader on whose behalf the seller is acting.

However, stalls at fairs and markets are legally considered as business premises and therefore, any purchases done at fairs and markets do not qualify for the cooling off period. Hence, consumers who purchase goods or services from trade fairs cannot simply change their mind, cancel the sale and request a full refund. Consumers only have such rights when buying from doorstep sellers or distance sellers. When applicable, no terms and conditions can take away these rights.

With regards to guarantees, these apply in the same way as when we buy goods at their original price. This means that any item purchased, even at reduced prices, is covered by law and if it turns out to be faulty or not as described, consumers may claim a free of charge remedy – this could be either repair or replacement, or if neither of these two remedies are possible, money refund. These remedies are available for two years from the date the product was purchased and delivered to consumers.

These legal rights do not apply for faults that are apparent or that have been brought to the consumers’ attention before they purchased the goods. No seller and no terms and conditions can replace or take away from consumers these legal rights.

Are online purchases covered by a guarantee?

Products purchased from EU member states are legally protected for a period of two years from the date of delivery, in cases of non-conformity to the contract of sale or latent defects. When this happens the legal remedies of repair, replacement, or money refund apply.

Besides this legal protection, certain products that consumers purchase may also carry a commercial guarantee. Such guarantees should always be given in writing to consumers and should include information about what the guarantee covers and for how long. Consumers should check whether the guarantee is valid for Malta and if it is, whether there is a responsible local agent who is authorised to honour the commercial guarantee. If this is the case, such information, together with the name and contact details of the local trader, should be given to consumers during the sale.

Should consumers have a problem with the product purchased online, they should first address their complaint with the foreign seller. If no satisfactory solution is obtained and the trader resides in an EU member country, European consumers may seek the assistance of the European Consumer Centres spread all over EU member countries.

When consumers seek the assistance of these centres, they will not only be provided with information on their consumer rights in specific European countries, but will also be assisted in reaching an amicable solution with the foreign trader. If amicable settlement through mediation proves unsuccessful, ECC Malta can assist consumers to take their case to an alternative dispute resolution body in the overseas country.

If the foreign company is not EU based, consumers have to be extra cautious with regards to guarantees. Prior to purchase they should check what type of guarantee the product carries and have its conditions well explained in writing. In these circumstances seeking redress proves to be more difficult since the regulations of the country where the company is based might differ from the EU Directive.

What documents should consumers keep when making a purchase?

Consumers should always make sure that they are given a proof of purchase, which may either be the fiscal receipt or any other document that proves when the product was purchased, from which seller, and the price paid. Such proof of purchase should be kept for a minimum period of two years, which is the time limit by when consumers can claim a legal remedy if applicable.

If the product purchased carries a commercial guarantee, documents related to such guarantee should also be kept. It’s also important to keep a contract of sales as this usually includes all the relevant information on the sale, and consumers may refer to it if the product or service bought is not in conformity with what was agreed to during the sale.

If a consumer purchases an item during a sales period, and then discovers a fault, what redress can be sought?

Legal rights do not change, no matter the discount on the original price. In such situations consumers may exercise their legal rights and request a free of charge remedy. Should the seller refuse this request, consumers may then file a complaint with the Office for Consumer Affairs within the Malta Competition and Consumer Affairs Authority for mediation.

Can a seller omit to give a consumer any guarantee on a discounted product?

Commercial guarantees are given out voluntarily by sellers – hence sellers may decide to not give such guarantees on certain products.

Then it is up to consumers to opt for a product without a commercial guarantee.

However, even products sold without a commercial guarantee are legally covered by the Consumer Affairs Act. If these products result defective or not in conformity with the contract of sale, consumers have the legal right to request a free of charge remedy such as repair or replacement. If neither of these two remedies are possible solutions, or if opted for may cause a significant inconvenience to consumers, then consumers may cancel the sale and ask for their money back.

If a discounted product is mishandled and damaged while being transported by the seller to the consumer’s home, what remedies are available?

The seller is responsible for the product sold until it is delivered to the consumer. So if the product bought arrives at the consumer’s house damaged, the seller is responsible to either replace the damaged product or, if such solution is not possible, refund the money paid by the consumer.

What are the negative consequences of a product being advertised in a misleading manner?

Misleading adverts are illegal and therefore prohibited. A commercial practice is considered misleading if it provides misleading information on the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, origin, and also the results to be expected from its use.

Misleading adverts and other unfair commercial practices may be reported to the Office for Consumer Affairs either via e-mail at fair.trading@mccaa.org.mt or on 2395 2000.

How should any issues be tackled by a consumer?

When a problem crops up, consumers should first speak to the seller or service provider to try and find an amicable solution. Sometimes speaking to the trader is not enough. Therefore it is advisable to put their complaint in writing and send it to the seller by registered post so they have proof that their complaint was delivered to the seller.

If consumers are not offered an acceptable solution by the seller, then they should register a complaint with the Office for Consumer Affairs. Complaints can either be lodged personally by visiting the office’s premises at Mizzi House, National Road, Blata l-Bajda, or the Valletta Office at 47A, South Street. The offices are open on weekdays between 8am and 3pm from October 1 to June 15 and between 9am and 12.30pm from June 16 to September 30.

When filing a complaint, consumers should make sure that they also submit all relevant documentation, such as copies of receipts, contracts and guarantees. Complaints can also be filed through post or by sending an e-mail at fair.trading@mccaa.org.mt.

If a consumer complaint is justified, it will be assigned to a complaint handler who will then act as mediator, contact the trader and inform him of his obligations at law. If an amicable solution is not reached, consumers will then be offered the possibility to submit a claim before the Consumer Claims Tribunal or withdraw the complaint.

Odette Vella is a senior information officer at the Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.

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