Products bought by consumers must be free from any hidden defects, conform to the contract of sale and be fit for purposes for which goods of the same type are normally used. When problems arise, consumers may be protected by two types of guarantees: the legal and the commercial guarantee.
The Legal Guarantee
The Sale of Goods Regulations set out specific rules with regards to how goods sold to consumers should be supplied. In the first instance, goods provided to consumers must be as described in the sales contract, be of the quantity and quality agreed, and must possess the functionality, compatibility and interoperability as required by the sales contract. In addition to this, the supplied goods must be fit for any particular purpose for which consumers require them and made known to the trader at the time of sale. Goods must also be supplied with all the accessories and instructions as stipulated in the sales contract. Finally, the goods delivered to consumers must possess the quality, quantity and features normal for goods of the same type and which the consumer may reasonably expect given the nature of the goods and any public statements made by the seller.
In the case of goods sold with digital elements, the seller is responsible to ensure that the consumer is informed of and supplied with updates that are necessary to keep the purchased goods in conformity with the sales contract for the period of time the consumer may reasonably expect given the type and purpose of the goods and the digital elements.
When these legal requirements are not met, consumers may request a free remedy from the seller. Consumers are first entitled to have the goods brought into conformity through repair or replacement. These remedies must be provided within a reasonable time and without causing any significant inconvenience to consumers, whilst considering the nature of the goods and the purpose for which the consumers require them.
A proportionate reduction of the price or the termination of the sales contract may be claimed in situations where the trader cannot complete the repair or replacement within a reasonable time or without causing a significant inconvenience to consumers. The termination of the sales contract or partial refund may also be opted for where the product’s problem is of a serious nature and where the seller has refused to provide free repair or replacement.
A sales contract cannot be terminated when the lack of conformity is minor or insignificant.
The time-limit for consumers to claim these remedies is two years from the goods’ date of purchase. These two years are suspended for the duration of the time it takes the seller and the consumer to resolve the dispute and a suitable remedy provided to the consumer. For goods with digital elements which involve a continuous supply for more than two years, the liability period is the same as the supply period.
When goods result faulty within the first year, it is assumed that they were faulty at the time of sale. This unless proved otherwise by the seller or unless this presumption is incompatible with the nature of the goods and the nature of the defect the product has.
Consumers are obliged to inform sellers of any lack of conformity in writing within two months of the date on which they detected the problem.
Situations where sellers are not legally obliged to provide a remedy include circumstances where consumers change their mind or make a wrong purchase decision. Most retailers, however, do have certain return policies that allow consumers to exchange unwanted items. It is the consumers’ responsibility to ask about the shops’ return policies before concluding a purchase.
Incorrect installation of the product where the installation does not form part of the sales contract also exempts sellers from liability. In the case of goods with digital elements, sellers are not responsible for any lack of conformity when it is the consumer who fails to install the updates supplied by the seller. However, the seller must properly inform the consumer about the availability of the update and the consequences if the update is not installed.
The Commercial Warranty
A commercial warranty is given voluntarily to consumers by sellers when buying certain types of products, such as for instance electric products. This warranty does not replace the legal guarantee, but it must provide additional benefits to consumers.
A commercial warranty must be provided to consumers in writing, in plain language, in Maltese or English and should include the following information:
Name and address of the guarantor. If no information on the guarantor is specified, then the seller who issued the guarantee is legally responsible for it.
A clear description of the goods or services covered under the guarantee.
The length of the guarantee and when it starts.
Its territorial scope, if limited.
The type of remedies the guarantee offers if the product results defective and how consumers can make a claim under the guarantee.
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.
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. If, however, consumers are not informed of these costs before concluding the sale, the costs of returning the unwanted goods must be paid by the seller.
In both distance and off-premises contracts, the cancellation period starts from the day consumers take 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 physically 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.