Consumer goods sales and associated guarantees

Consumer goods sales and associated guarantees

Star�ng the 1st of January 2007, the Romanian legisla�on regarding product guarantees has been changed

because the new Law 449/2003, transposing the Direc�ve 1999/44/EC on certain aspects of the sale of consumer

goods and associated guarantees, has entered into force.

The new Law applies to all kind of products, such as: cars, shoes, electronics, clothes etc., with few excep�ons.

The Law deals with two types of guarantees: a legal guarantee, designated in the law as an obliga�on of

conformity with the contract, and a commercial (conven�onal) guarantee.

Although the law uses the same term as the Direc�ve, “the conformity obliga�on”, in reality it is actually a

guarantee obliga�on, the seller being bound to guarantee that the products are just as the contract describes

them, and if there is a lack of conformity when purchasing the product, the seller is liable.

1. The legal guarantee – obliga�on of conformity with the contract

The Law establishes an obliga�on for the seller to deliver goods which are in conformity with the contract of

sale. This means that the products should present all specifica�ons s�pulated in the contract.

The Law provides four cumula�ve condi�ons which, if they are respected, a product should be considered as

being in conformity with the contract:

• when products “are fit for the purposes for which goods of the same type are normally used”. The lack of

conformity covers in this case the defect no�on, in other words the product doesn't func�on as it should do: the

fridge doesn't freeze, the shoes tear a�er the first wear etc.

• when products “are fit for any par�cular purpose for which the consumer requires them and which he

made known to the seller at the �me of conclusion of the contract and which the seller has accepted”. This

situa�on appears when consumers need products with par�cular characteris�cs and to obtain them they

conclude a contract with the seller to make such a product or to modify an existent product.

• when products “comply with the descrip�on given by the seller and possess the quali�es of the goods

which the seller has held out to the consumer as a sample or model”.

• when products “show the quality and performance which are normal in goods of the same type and

which the consumer can reasonably expect, given the nature of the goods and taking into account any public

statements on the specific characteris�cs of the goods made about them by the seller, the producer or his

representa�ve, par�cularly in adver�sing or on labeling.” In this case, an eventual lack of conformity is analyzed

in accordance with two elements: the product's nature and the declara�ons made regarding the product.

According the concrete circumstances of the contract's conclusion, some of these condi�ons may not be present.

The lack of a condi�on as a result of lack of performance from the seller – lack of conformity – is not the same

thing with the lack of a condi�on due to the concrete circumstances or to the par�es' will. For example, the

consumer doesn't ask always the product should be modified or made to have the characteris�cs he looks for, not

every product is promoted etc.

The seller is liable only for the lack of conformity which exists at the moment of product delivery.

Besides the situa�ons detailed above, there is a lack of conformity also in the following situa�ons:

• when the lack of conformity results from incorrect installa�on, if installa�on forms part of the contract of

sale of the goods and the goods were installed by the seller or under his responsibility;

• when the lack of conformity results from incorrect installa�on, if the product, intended to be installed by

the consumer, is installed by the consumer and the incorrect installa�on is due to a shortcoming in the

installa�on instruc�ons.

Presump�on of a lack of conformity

The Law establishes in favor of the consumer a rela�ve presump�on, which means that if a lack of conformity

becomes apparent within six months of delivery of the goods it will be presumed to have existed at the �me of

delivery, unless this presump�on is incompa�ble with the nature of the goods or the nature of the lack of

conformity.

The presump�on does not apply in three cases:

• if the seller proves the lack of conformity has not existed at the moment of delivery;

• if the presump�on is incompa�ble with the

• nature of the product;

• if the presump�on is incompa�ble with the nature of the lack of conformity.

Time limits

The legal guarantee operates for two years from the delivery moment. For used products the period of �me can

be reduced to one year by common agreement. For products with a medium u�liza�on dura�on shorter than 2

years, the guarantee period will be reduced to this dura�on.

The consumer must inform the seller of the lack of conformity within a period of two months from the date on

which he detected such lack of conformity.

Seller's liability

In the case of a lack of conformity, the seller is liable and must bring the goods to conformity by:

• repairing or replacing the product

• an appropriate reduc�on of the price or cancella�on of the contract.

All the costs to bring the product to conformity are in the seller's charge such as: postal costs, labor, materials,

transporta�on etc.

A. Repair/replacement of the product

In the case of a lack of conformity, the consumer can choose between the repair and the replacement of the

product. The consumer's right of op�on may not be exercised when the measure he chose is impossible or

dispropor�onate.

A remedy shall be deemed to be dispropor�onate if it imposes costs on the seller which, in comparison with the

alterna�ve remedy, are unreasonable, taking into account:

• the value the goods would have if there were no lack of conformity,

• the significance of the lack of conformity, and

• whether the alterna�ve remedy could be completed without significant inconvenience to the consumer.

Any repair or replacement shall be completed within a reasonable �me and without any significant

inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the

consumer required the goods.

The period established by common agreement cannot be longer than 15 days from the moment the consumer

informed the seller about the lack of conformity or delivered the product to the seller or its representa�ve on the

basis of a document.

The period the product did not func�on extends the warranty period. The replaced products must have a new

warranty period.

B. Appropriate reduc�on of the price or rescission of the contract

These remedies can be claimed in three situa�ons:

• if the consumer is en�tled to neither repair nor replacement, or

• if the seller has not completed the remedy within a reasonable �me, or

• if the seller has not completed the remedy without significant inconvenience to the consumer.

The contract's rescission means the contract is cancelled and the par�es are put in the situa�on they were before

the signing of the contract. This means the consumer must return the product, and the seller must return the

price paid by the consumer for that product.

The consumer is not en�tled to have the contract rescinded if the lack of conformity is minor.

The appropriate reduc�on of the price means that, if all the condi�ons are met, the consumer agrees to keep the

product, even if it has a lack of conformity, and the seller returns to the consumer a part of the paid price which

corresponds to the part of the product affected by the lack of conformity.

In the case of long term use products which cannot be repaired or when the whole non-func�oning period is

more than 10% of the warranty, the seller will replace or will reimburse the consumer.

Exclusion of seller's liability

The seller is not liable in the following situa�ons:

• when he shows that he was not, and could not reasonably have been, aware of the public statement

made;

• when he shows that by the �me of conclusion of the contract the statement had been corrected;

• when he shows that the decision to buy the consumer goods could not have been influenced by the

statement;

• when at the moment of the contract's conclusion the consumer was aware, or could not reasonably be

unaware of the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.

2. The commercial guarantee

According to the Law 449/2003 the guarantee (commercial or conven�onal) represents “any undertaking by a

seller or producer to the consumer, given without extra charge, to reimburse the price paid or to replace,

repair or handle consumer goods in any way if they do not meet the specifica�ons set out in the guarantee

statement or in the relevant adver�sing”.

This means the commercial guarantee represent a contract (accessory to the sale contract) through which the

seller or the producer commits himself, free of charge, to guarantee that the product corresponds to the

specifica�ons set out in the guarantee statement or in the relevant adver�sing.

Although it is not specifically men�oned in the law, we believe that the commercial guarantee should offer more

advantages that the legal guarantee, like: prolonging the direct liability period, prolonging the period in which the

lack of conformity presump�on operates, reimbursing the value of the product if it gets damaged during the

direct liability period etc.

The guarantee contract

The conclusion of a guarantee contract is not mandatory for the seller or the producer with the excep�on of cases

when he makes public statements regarding the guarantee or refers to it in the adver�sing for the product.

In the eventuality of such statements the moment of conclusion of the contract is the moment of the conclusion

of the sale's contract, because the consumer accepts also the offer regarding the commercial guarantee.

If there are not such public statements, the moment of contract's conclusion is considered the moment when the

consumer accepts the guarantee offer.

The Law doesn't establish any specific form for the guarantee contract, but when the consumer requests it, the

contract must be provided to him on durable support.

The commercial guarantee must contain men�ons regarding the legal rights of the consumer and to make clear

these rights are not affected by the guarantee.

Then, the commercial guarantee must contain men�ons regarding:

• iden�fica�on elements of the product;

• guarantee period;

• medium u�liza�on dura�on;

• ways to ensure the guarantee – repair, replacement, maintenance and the period of �me necessary for

this;

• name and address of the guarantor;

• name and address of the service unit.

Centrul European al Consumatorilor din România

Str. Maior Aviator Ștefan Sănătescu nr. 44 Et. 1, Ap. 2, Sector 1,

Bucureș�, 011478

Tel/fax: +40.21.315.71.49

E-mail: office@eccromania.ro

Web: www.eccromania.ro

www.facebook.com/ECC.Romania

h�ps://twi�er.com/eccromania/

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Conținutul acestui material reprezintă doar punctul de vedere al ECC Romania și este doar responsabilitatea acestuia; nu poate fi interpretat în niciun caz ca reflectând punctul de vedere al Comisiei Europene și/sau al Agenției Executive pentru Consumatori, Sănătate, Agricultură și Alimente sau al oricărei alte instituții a Uniunii Europene. Comisia Europeană și Agenția nu își asumă nicio răspundere pentru niciun fel de utilizare a informațiilor din acest material.

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