Every product bought by consumers must be free from any hidden defects, conform to the contract of sale and performs like any other similar product. When problems crop up, consumers may be protected by two (2) types of guarantees: the legal and the commercial guarantee.
The legal guarantee
The law provides that goods purchased by consumers must be as decribed by the trader, fit for the purpose and have the qualities and performance which are normally found in goods of the same type. If this is not the case, consumers can ask for a free of charge remedy from the trader. The time-limit for the free remedy is two years from the date the product purchased came into the consumer’s possession.
The remedies provided in the legal guarantee are:
Part or full refund
Consumers would not be entitled for these remedies, however, if the defect in the product is the result of some kind of misuse. During the first 6 months, if the product is defective, it will be considered as a latent defect, unless the trader does not prove otherwise.
When a good develops a fault, the trader has the right to first choose to repair the product free of charge. The repair, however, should be carried out within a reasonable period of time and without causing any significant inconvenience to the consumer.
The period of the guarantee will be suspended until the product is repaired and given back to the consumer. The suspended time shall then be added with the guarantee.
Replacement of defective or non-conforming goods can be chosed if the product cannot be repaired or if the repair would cause significant inconvenience to the consumer.
When a product is replaced, the two year legal guarantee does not start over again with the replaced product, but will contine from the original date of purchase.
Part or full refund
A part or full refund of the money paid for the product may be claimed when repair or replacement of the product are either not possible or if opted for may cause a significant inconvenience to consumers
One is not entitled to request a full refund when the lack of conformity is only minor or insignificant or when the product has been used for quite some time.
The Commercial Warranty
This type of guarantee is not obligatory. In fact, it is given to the consumer voluntarily by the seller when buying certain goods, for example cars or electronic goods. This, however, does not replace the legal warranty. On the contrary, the commercial guarantee should provide the consumer with additional benefits.
A commercial guarantee should be written clearly, in plain language, in either Maltese or English and should include the following details:
The name and address of the guarantor
The length of the commercial guarantee and when it starts
Description of the goods and services that are covered by the warranty
Contents, including territorial scope if limited
Instructions on how the consumer should claim remedy under this guarantee and an address where claims can be sent
The remedies offered to the consumer under the guarantee if there is a defect
Declaration of whether the consumer can transfer the guarantee to others – if not specified, subsequent owners will have the right to avail themselves of the guarantee.
If the product is returned to the trader to be repaired or replaced as per the commercial guarantee’s terms and conditions, the guarantee is automatically extended by the period during which the guarantor had the goods in his possession while executing the repairs.
A consumer may choose to return a product for two reasons: the good is defective or because of a change of mind.
The goods bought should always be as described by the trader, fit for purpose and must also show the quality and performance which are normal in goods of the same type.
If this is not the case, under the two year legal warranty, the consumer may ask for a free of charge remedy. The remedies provided by law are: repair, replacement or refund.
Change of mind
Change of mind situations or wrong buying decisions are not protected by law. This means that traders are not legally obliged to offer consumers a remedy in such situations.
Most retailers, however, do have certain return policies that would allow consumers to exchange unwanted items. In fact, it is the consumers’ responsability to ask about shops’ return policies before concluding a purchase.
In such situations, traders may offer one of the following solutions:
Exchange of goods
Distance and off-Premises Contracts
A distance contract is a contract concluded between a trader and a consumer with the exclusive use of one or more means of distance communication, such as by mail order, telephone or internet
An off-premises contract is a contract concluded with the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader. For example: in the street or at the consumer’s house.
When concluding such contracts traders cannot request any payment from consumers before the delivery of the goods. If the goods are delivered in parts, the trader can only ask for the payment that represents the price of the part delivered.
If the trader requires the payment of a deposit, this deposit must not exceed 10% of the price of the goods ordered and shall not be requested from the consumer before the cooling-off period expires, that is, 14 days from the date of the off-premises contract.
The right to information
For both distance and off-premises contracts, before concluding the sales transaction, consumers should be given the following information in at least one of the official languages of Malta:
A clear description of the main characteristics of the goods or services offered for sale,
The identity of the trader (such as trading name, address and contact number),
The total price of the goods and services, including taxes and additional charges (e.g. delivery charges),
The cost of using the means of distance communication if the charge is more than the basic rate,
The method of payment and by when the goods will be delivered or in case of services when these will be performed,
The duration of the contract, if the contract is of indefinite duration the conditions for terminating the contract,
The right of withdrawal if it is applicable to the sale being concluded,
A reminder of the existence of a legal guarantee of conformity for goods,
Where applicable, the existence and the conditions of after sales customer assistance, after sales service and commercial guarantees.
Right of withdrawal
Before concluding such contracts, consumers should also be informed about their right of withdrawal, which amounts to 14-days.
When exercising their cancellation rights, consumers do not have to give any reason and must not incur any costs, except the cost of returning the unwanted goods back to the seller. This, unless, they are not informed of such charges. In this case the postage costs must be paid by the seller.
In both distance and off-premises contracts, the cancellation period starts from the day consumers acquire physical possession of the goods. In the case of services, the withdrawal period expires after 14 days from the conclusion of the sales contract. If consumers are not informed about the withdrawal period, the right to cancel the sale will be extended to 12 months or will start when consumers are informed about it.
When the right of withdrawal does not apply, consumers must be informed accordingly.
When deciding to cancel a sale during the 14 days cooling off period consumers will need to either fill in the withdrawal form provided by the seller at the time of purchase or write to the seller about their intentions to cancel the sale. It is the consumers’ responsibility to have proof of having cancelled the sale within the stipulated time-limit.
Exceptions to the right of withdrawal:
When the service has begun with the consumers’ consent and with the knowledge that they are forfeiting the right of withdrawal
Supply of goods and services, which price depends on fluctuations in the financial market,
The supply of goods which are liable to deteriorate or expire rapidly,
The supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery,
The supply of newspapers, periodicals and magazines except for subscription contracts for the supply of such periodicals,
Sales contract concluded at a public auction,
The supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumers’ prior express consent and their acknowledgement that they thereby lose their right of withdrawal.
The right to redress
If the product purchased through a distance means of communication or off-premises turns out to be faulty, or not as described before the sale was concluded, consumers have the same legal rights as when they buy goods personally from a shop. Hence, consumers would be entitled to claim a legal remedy, which may be either repair or replacement, or else part or full refund. The time limit to claim these remedies is two years from purchase.