Types of guarantees provided for by Legislative Decree 206/2005 (“Consumer Code”)
- The legal guarantee; This memo deals with the analysis of the various systems of remedies granted to the consumer in the case of the purchase of any consumer good that does not comply with the sales contract.The legislator has ordered such protections for the consumer in accordance with article 128 et seq. of the Consumer Code, acknowledging the Directive 1999/44 / EC approved by the European Parliament in the field of “aspects of the sale and guarantees of consumer goods”.According to Article 130, the Consumer Code provides that “the seller is liable to the consumer for any lack of conformity existing at the time of delivery of the goods” and, pursuant to Article 132, for “the term of two years from the delivery of the good “.It is important to underline that the legislation regulated by the Consumer Code (hereinafter referred to as “Cons. Code”) is mandatory, therefore any agreement contrary to what has been acknowledged by the Italian legislator is void, except for any derogation in mejus.
The protection offered by the European and national legislator regards any consumer goods object of sale and purchase between the consumer and the seller, regardless of the method and the way in which the purchase is perfected; therefore, this includes online purchases, purchases via teleshopping or “door-to-door” purchases.
Moreover, the legal guarantee on consumer goods also applies to cases of “tribute”: in particular, we talk about “sales with incentives” or “sales accompanied by the promise of gifts or prizes”.
The first consideration to be made regarding the origin of the right of guarantee on the consumer goods concerns the moment of delivery of the goods, ie the moment in which the right referred to in articles 128 and ss. Consortium code
For the delivery of the goods we mean the actual availability of the goods object of the sale to the consumer, and this coincides with the passage of the possession of the asset from the seller to the buyer. In fact, the two-year guarantee terms (ie 26 months, as we will see later) start from the moment when the consumer can verify that the good purchased by the same is in conformity with the contract.
As proof of the passage of the consumer goods, the seller issues the receipt; that is, a mandatory document for the seller indicating the place, date, good sold and details of the seller. Moreover, the receipt can also be replaced by a copy of the same, as the law does not provide that the legal guarantee is provided only in the event of the receipt of the receipt.
The notion of compliance with the contract, in the discipline concerning the sale of consumer goods, can be translated in this way: i) suitability for normal use, ii) suitability for particular use; iii) compliance with the description given by the seller or the manufacturer; iv) quality of the goods corresponding to the sample or model presented; v) the usual quality and performance of a good of the same type.
The consumer has the right to experience, therefore, the remedial protections governed by the Consumer Code in the event these forms of conformity listed above are not complied with (You can, in particular, study the different cases depending on the type of product: for example, conformity also concerns the installation of a product or the assembly of this product, in this case determining the knowledge of the person who installed or assembled the product, in case the product is installed or assembled by seller, the consumer protection remains in the hands of the consumer, but, in case it was the same consumer, the responsibility of the seller and / or manufacturer only concerns the demonstration that the assembly instructions had been sfuorvianti and / or wrong in the indication of how to assemble the product).
What does the Consumer Code provide regarding the protections that can be carried out in the event of defects in the conformity of consumer goods?
The remedies system focuses on restoring compliance through various solutions that the legislator allows alternatively to the consumer: the replacement or repair of the asset. These operations must be granted completely free of charge, and all the expenses necessary to remedy the damage suffered by the consumer must therefore be borne entirely by the seller.
In fact, the obliged party vis-à-vis the consumer is exclusively the direct seller, who will then have the possibility to act by means of a right of recourse against the producer.
In this regard, it is emphasized that the guarantee can not be granted by the seller only in cases of
(i) objectively impossible remedial performance or
(ii) excessive burdens on the part of the same to “remedy” the non-conformity of the product.
Pursuant to Article 1453 of the Civil Code, the non-fulfillment of the contractual obligation entails the possibility of raising the contract before the competent authority, as well as being able to claim compensation for damages. The resolution determines, therefore, the restitution of the price paid, the return of the purchased good or the extinction of the bonds still in default; pursuant to art. 130, paragraph 7, this solution, together with the request for price reduction, is allowed only in the event that the repair and / or replacement are excessively burdensome, the seller has not provided for repair and / or replacement in a reasonable period or the previous replacement or repair has caused considerable inconvenience.
The legislator in the field of sales of consumer goods, in accordance with Article 130 of the Code Cons. has overshadowed the above remedies allowing, in fact, the consumer to eliminate the defect of the product through alternative systems such as repair or replacement of the purchased good.
The repair and / or the replacement give rise to the consumer the right to obtain the legal guarantee for a further two years, so in case any further faults occur after the repair or replacement, the consumer has the right to exercise the aforementioned remedial systems. Article 130, paragraph 5, of the Code Cons. it also provides that such remedial solutions “must be carried out within a reasonable time from the request and must not cause significant inconvenience to the consumer, taking into account the nature of the good and the purpose for which the consumer has purchased the good” As already mentioned at the beginning, the deadline for carrying out the alternatives granted by the legislature durable “goods are subject to two-year warranty period). However, the legislator has limited the reporting period for the consumer; In fact, the latter has been the burden of reporting the defects within two months of the discovery of the defects, under penalty of the decadence of the rimedial systems referred to in Article 130 of the Consortium Code. It should be noted, therefore, that the two-year term extends for another two months to avoid the paradox that the day of the discovery of the vice may coincide with the forfeiture of the two-year guarantee period. In order to obtain the above remedies, the consumer has the burden of proving (i) the actual defect of the consumer good, (ii) that the deficit exists in the moment of the delivery of the asset six months), (iii) that occurred within two years from the day of delivery, and finally (iv) that the product was purchased by the same person. In this regard, the legislator has not provided for specific forms of reporting defects to the seller, leaving the consumer free to choose the most effective way to obtain the systems of the rimediali. (In this sense also the Court of Cassation with sentence No. 2000/6324 confirmed that “the denunciation of the defects of the thing sold must not necessarily consist of a detailed exposition of the defects (…) since a general complaint can be suitable for the purpose ( …) “).
- The conventional warranty ;The legislator has allowed the consumer to be offered an additional warranty period, following the two-year mandatory period; precisely the obligation clarifies the two types of guarantee, in fact the legal guarantee, as already clarified, is mandatory under the law and obliges the seller to intervene to remedy the defects of the product sold by the same, instead, the conventional guarantee, despite is required by Article 133 of the Code Cons., depends exclusively on the will of the manufacturer to offer an additional service and the willingness of the consumer to accept this proposal. Should the offer be made to extend the warranty period, this must meet the requirements set out in Article 133 of the Cons. Code, that is (a) the specific rights of the consumer, (b) the object of the guarantee and the essential elements to make it valid, in a clear and precise way, (c) must be written in Italian. In case of lack of one of these requirements, the consumer is still entitled to exercise the guarantee offered. The practice provides that the conventional guarantee is offered against the payment of an initial amount, decided by the bidder on the basis of the value of the consumer goods object of the contract, thus assimilating the offer made by the manufacturer to an insurance contract.