Description
The new video camera does not work, the electric heater has been repaired twice but is still broken, and the new car sits more in the workshop than in the car park at home - any of us has faced such inconveniences.
Statutory warranty law regulates (in Art. 128 ff. of the Consumer Code) the claims that the purchaser may have against the seller following the delivery of a defective product or one whose characteristics do not conform to those stipulated in the contract.
These are legal provisions - which cannot be waived - that apply only to so-called consumer contracts, concluded between consumers and professionals and having as their object the sale of consumer goods. This type also includes exchange and supply contracts, as well as contracts of tender, works and all other contracts in any case pertaining to the supply of consumer goods that are produced (i.e. all movable property with the exception of those subject to forced sale or sold in other ways by the judicial authorities; water and gas, if not in containers that allow their volume or quantity to be known; electricity).
The seller is therefore obliged to deliver to the buyer only those goods that correspond to the characteristics stipulated in the contract of sale. This is referred to as contractual conformity. Certain requirements of the goods indicate their contractual conformity: suitability for the use normally envisaged for goods of the same type; correspondence of the product to the characteristics set out in the seller's description, or to those of the product already delivered on trial or in the form of a sample to the consumer; actual presence of qualities or performances that are typical of products of the same type and that the consumer would probably expect on the basis of normal experience or on the basis of expressions in advertising or labelling by the seller or manufacturer; suitability for a particular use desired by the consumer and brought to the seller's knowledge at the time of conclusion of the contract and that the seller has accepted.
The right of guarantee is not recognised in the case of defects that were well known to the consumer at the time of purchase or were so obvious that they could not be concealed.
Reversal of the burden of proof
If the defect appears within the first 6 months after delivery of the goods, it is presumed - until proven otherwise - that the defect was already present at the time of delivery. An exception is made for those defects that are incompatible with this assumption due to the nature of the goods or the defect itself. The law provides that it is the seller who may have to prove that the defect did not exist at the time of delivery.
If, on the other hand, the defect appears after the first 6 months after purchase, it is up to the purchaser to prove that the defect did not arise due to bad or incorrect use of the goods. As a rule, this evidence is not easy to provide, especially outside of actual litigation. Expert opinions have to be sought and the associated costs, which are often quite substantial, have to be borne. It is therefore advisable, especially with low-cost products, to consider very carefully whether to take this route.
If the damage is proven to have been caused by the consumer, any right to warranty is lost!
Remedies
It has become customary in practice for the consumer to allow the seller to attempt repair twice before being able to demand that the seller replace the product.
The repair or replacement must take place within a 'reasonable period', although unfortunately the legislator has not further specified what is to be understood by 'reasonable'. Not infrequently one then has to reckon with long waits, so much so that it is advisable to indicate in writing to the seller a deadline for the return of the good or its replacement.
The consumer also has the possibility of demanding an appropriate price reduction or termination of the contract in cases where
- repair and replacement are impossible or excessively expensive;
- the seller does not carry out the repair or replacement within a reasonable time;
- the repair or replacement causes significant inconvenience to the consumer.
The wear and tear of the goods in question must also be taken into account when quantifying the price reduction to be claimed or the refund of the price paid (in the event of contract termination).
In the event of a minor defect for which repair or replacement would be impossible or excessively expensive, termination of the contract may not be claimed.
Shipping costs, labour and materials necessary for repair or replacement may not give rise to any charge to the consumer.
Remember that the warranty rules also apply to products offered for sale: if, therefore, a product bought at bargain prices in the end-of-season sale breaks down or shows a defect, the seller is fully liable for it as in the case of products sold at full price.
The guarantee should not be confused with the possibility of exchanging goods: the guarantee is a right enshrined in law, whereas the exchange of goods is not. The consumer has no right to exchange defect-free goods purchased in a shop. The seller may grant the customer this possibility, but at his discretion.
Terms
The seller is liable for defects arising within 2 years after delivery of the goods. The defect must be notified within 2 months of its discovery, under penalty of forfeiture. The consumer does not have to comply with any formalities, as he may address the seller either verbally or in writing (e-mail, fax or letter). However, we always recommend the registered letter with acknowledgement of receipt, which has the advantage of providing proof of both dispatch and receipt of the letter.
The statutory period of 2 months from the time of discovery need not be observed if it turns out that the seller already knew of the defect at the time of sale or had concealed it.
Claims for defects not maliciously concealed by the seller shall in any case be time-barred within 26 months from delivery.
Used goods
In the case of the purchase of second-hand goods, it is possible to limit the minimum duration of the warranty to 1 year if the parties agree to this term between themselves. This is now the rule commonly adopted in contracts concerning used goods.
Conventional warranty
The purchase contract may also provide for a manufacturer's warranty statement. The content of the warranty binds the manufacturer even if it has been promoted through advertising. The warranty certificate must inform in a clear and comprehensible manner about the content of the commercial warranty and the essential elements for enforcing it (e.g. the duration and territorial scope of coverage, the details and address of the manufacturer).
The receipt or fiscal receipt
It is essential to keep the receipt or fiscal receipt for at least 26 months after purchase: without a receipt, proof of where and when the product was purchased becomes more difficult.
Useful links:
Brochure on the legal warranty in Italy and other EU countries
Warranty information for cars imported from another EU country
Standard letter - Repair, replacement defective product17.08 Kb
Standard letter - Termination after unsuccessful repair17.25 Kb
Source: European Consumer Centre (CEC) Italy
Image: Canva