Is the seller responsible for providing a remedy if the product has resulted faulty because the consumer did not handle it properly?

Consumers are legally entitled to request a free remedy when the goods they buy do not conform to the contract of sale, that is, either:

• the product does not comply with the description given by the trader;

• it is not fit for the particular purpose for which the consumer requires the product and which the consumer had made known to the trader at the time of sale; or

• it is not fit for the purpose for which goods of the same type are normally used.

Hence, if the product is not used for its intended purpose or the consumer does not take care of the product, as instructed in the manual or by the seller at the time of sale, then the trader is not liable for any malfunctions of the product.

If the product which is still under guarantee results to have been opened or tampered with by the consumer or a third party, is the seller still obliged to provide a remedy? If this happens, what proof is the trader bound to provide?

The Consumer Affairs Act stipulates that the obligations of the trader shall lapse where the lack of conformity has its origin in materials supplied by the consumer. Hence, if the defect in the product is caused by the consumer, then the trader is no longer liable to provide a free remedy. This is especially so if the product carried instructions as to how it should should be taken care of.

This legislation does not specify what kind of proof should be provided by the trader in case of defect. However, if the problem occurs within the first six months of purchase, it is up to the seller to provide proof that the defect was caused by the consumer.

odette.vella@mccaa.org.mt

Odette Vella is director, Information, Education and Research Directorate, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.