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The New Guarantee Right
Fundamental Improvements in Favour of the Consumer
Your new video camera does not work, the repair of the heating has failed, your new car is more in the mechanic’s garage than in yours: certainly everybody of us has been confronted with defective products or deficient service and has got annoyed when reclaiming. The right of guarantee regulates the consumer’s rights in the case of such deficiencies as well as the conditions under which the trader has to take corrective action. The practical importance of these regulations is obvious.In Italy the implementation of the new guarantee right went into force on March, 23rd 2002. And this reform brings a lot of improvements in favour of the consumer. The new regulation is consid-ered to be a milestone in the politics of consumer protection, because it grants a considerable amount of important requests.
What is new?
The concept of fault basically remains the same. We talk about a fault or defect if the product can not be used for its original purpose anymore and when this fault reduces the value of the product considerably.The concept of “contract conformity” can be of greater interest for the consumer. The trader is obliged to sell articles which correspond to the purchase contract. That means that the products have to fulfil what the trader promised or showed on a model product. This kind of liability has now been extended to advertising and other public statements of the trader or the manufacturer. Also product information on the packing or in the catalogue are meant here. The trader can only reject the mentioned liability for promises of a third party if he can prove that he did and could not know them, that statements were corrected or that the consumer was not influenced by them.
Which contracts do the new regulations refer to?
The new regulations of the guarantee right do not only refer to the purchase of consumer goods, but also to the barter agreement, the contract of supply and the contract for work and materials. They are also valid for all the contracts referring to consumer goods that are produced (for example when a joiner is charged with producing a piece of furniture.) For real estates and contracts without delivery of goods the old regulations are still in force.Guarantee Periods
The legal guarantee period has been extended to two years as from delivery of the product. (hitherto one year). The consumers can reclaim the defect at the trader or the craftsman until 60 days (hitherto 8 days) after noticing the fault.The possibility of legal action runs out 26 months after purchase.
The notice of defects
The notice of defects has to be made in written form, with a registered letter and reply, within the mentioned period. A written advice is not necessary if the trader has already taken note of or has concealed the defect.Shorter guarantee periods for second hand articles
The new law leaves no doubt about second hand articles: The new regulations also refer to used consumer goods, for example to used cars. The guarantee period for second hand articles can be shortened per contract to one year, but not less than one year. The estimate of the defect takes into consideration the depreciation of the used article.
The burden of proof
There is an important improvement for the consumer regarding the burden of proof: If a fault is discovered within 6 months after delivery/service, the lawmaker will assume that it has already been there at the time of deliverance. This means that the mercantilist practically carries the burden of proof. After the period of 6 months the consumer has to prove that the fault of the product/service was already there at the time of deliverance.How to Make up for Faults
Also the graduation of guarantee benefits (priority of repair or replace) is new and changes the legal position in favour of the consumer.1. First the consumer can decide himself if he wants the article to be repaired or replaced, both free of costs, except for the case if one of the two solutions is incomparable more expensive or time consuming in confront of the other. What does “incomparable more expensive” or “time consuming” mean? An example: if the defect can be corrected by a small repair it is certainly not possible to ask the replacement of the product from the trader. The replacement can be requested if the repair fails or is carried out badly.
If the defect is grave, so that the article does not work at all, if the repair is complex or brings a lot of disadvantages for the consumer, then the request of replacement is absolutely legitimate.
And if the repair lasts too long? The lawmaker says that repair or replacement have to be carried out in an “reasonable period”, whatever that means. In the case of long waiting times it would appear advisable to ask in a written form for the deadline of return or replacement of the article.
It is important to emphasize in this context that the law explicitly says that the consumer must remain free of expenses for mail, transport, performance or material.
2. In three cases the consumer can request an adequate discount or the cancellation of the con-tract: (these criteria where already hitherto fixed by the Civil Code, Art. 1492):
- The repair or replacement is impossible or extremely costly;
- The trader has not made sure the repair or replacement within an adequate period (see above);
- The repair or replacement bring unreasonable disadvantages for the consumer.
Imperative application of the new norms
An important principle about unfair contractual terms which is already fixed in the law is explicitly maintained: It says that every contract which does not consider the consumer’s rights is void. The consumer can not be forced in any case to do without his rights guaranteed by law.Guarantee by contract
On the other hand the trader or manufacturer can offer the consumer further guarantee services, additionally to the ones provided by law.Sales slip or bill
It is extremely important to keep the sales slip or bill at least for 26 months. Without bill the verification of the time and place of purchase is difficult.When did the new regulations go into force?
The law (national law – “decreto legislativo” nr. 24 from the 02.02.2002) has been in force since March, 23rd 2002. The law is not valid for any goods and services acquired before the mentioned date. In these cases the old guarantee regulations are applied. (art. 1460ff).The old law remains in effect as well as the new law.
status 04/2002
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