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Legal Warranty of Conformity

Legal Warranty of Conformity

Help and advice for consumers in Europe

Pursuant to current legislation on the legal warranty (Article 128 -135-septies of the Consumer Code), the consumer has the right to receive goods in conformity with the contract, i.e. goods that meet certain subjective and objective requirements established by law in respect of which a guarantee of 24 months from the date of delivery applies, which may be reduced to 12 months in the case of the purchase of second-hand goods.

If the characteristics and performance differ from the information received, if there is a defect in the operation or malfunction of the goods, if the contractually agreed upgrades are not provided, the consumer has the right to have them repaired, replaced (at the consumer’s option) and, if this is impossible, excessively burdensome or the seller fails to do so, refund of the price paid or a discount for minor defects.

The law imposes on the seller alone the requirement to pursue remedies to restore the conformity of the goods found to be defective; this means that we may appeal to the store or website from which we purchased the goods and demand that the seller deal with our problem as diligently as possible.

In fact, we need to keep the “conventional” warranty separate from the legal warranty, which can be offered by the manufacturer, by the seller or by a third party (insurance company for example) and does not replace but is in addition to the warranty that by law must be provided by the seller. Therefore, please disregard the signs that read: “the product is only replaced within XXX days of purchase, after that you should contact the manufacturer’s service centres” and challenge the seller’s assumption that the manufacturer must be contacted. The seller is responsible for taking back the returned goods at his or her own expense and taking action, with the exception of claiming against the party responsible for the defect.

Requesting and keeping the sales receipt or equivalent document certifying the place and date of purchase is of paramount importance since the consumer must prove that the purchase was made at that specific store, online or physical, and that 24 months have not yet passed since delivery. However, a warranty certificate should also be sent or, in any case, it is useful to carry out all those steps required to activate the conventional warranty, if any, to possibly benefit from protection over and above those provided by law, such as, for example, a longer duration or coverage of accidental damage or failure due to wear and tear.

The new rules on legal guarantee of conformity also apply to goods with digital elements, i.e., “tangible movable goods that incorporate, or are interconnected with, digital content or a digital service in such a way that the absence of said digital content or digital service would prevent the goods from performing their proper functions”. These goods fall under the broader scope of the Internet of things (IOT), materials that are nevertheless connected to the network and exchange information with it. The seller is liable for any defect in conformity of the digital content or service that occurs or manifests within 24 months after delivery, or for a longer period if delivery is contractually scheduled for more than two years. The seller is not liable for the defect that occurs because of a failure to install upgrades on condition that the seller has informed the consumer of the availability of the upgrade, consequences in case of non-installation, and has provided adequate installation instructions.

HOW TO PROVE THE EXISTENCE OF THE CONFORMITY DEFECT?

The indication of characteristics and requirements that can identify the conformity of the good with the sales contract effectively facilitates the consumer in detecting possible defects such as:

the possession of contractually agreed features and functionalities
the provision of accessories, installation instructions and the availability of updates
the objective unsuitability of the goods for normal use, guaranteed by other goods of the same type
the lack of usual quality and performance in relation to goods of the same type
incorrect installation if carried out under the responsibility of the seller or due to deficient instructions
particular conduct of the seller towards the consumer prior to the sale (promises and verbal statements intended to convince the buyer)
the reasonable expectations that the buyer has brought to the seller’s attention at the time of purchase (in relation to the suitability of the goods for the particular use indicated as a need by the consumer)
the qualities of the goods presented as a sample and as a model form an integral part of the sales contract (this also applies to remote sales).

Finally, it should be pointed out that if the defect occurs or becomes apparent within the first year after purchase, it is assumed that the good was non-conforming from delivery unless the nature of the good or defect excludes this assumption. Consequently, a seller who wants to discharge the obligation to restore conformity through the remedies provided will have to provide evidence to the contrary, i.e., that the good was conforming or that the defect is actually a consequence of the improper use of the good.