Guarantee may be a legal obligation of the seller (legal conformity guarantee) or any commitment assumed by the seller or manufacturer (commercial guarantee) to the consumer, without requesting additional costs, refund the price paid by the consumer, repair or replacement of the purchased product, if it doesn’t meet the conditions set out in the statements regarding guarantee or in the related advertising.
Law no. 449/2003 regarding the sale of goods and associated guarantees, with subsequently amended and supplemented, regulates aspects of selling products, including those made to order and associated guarantees in order to ensure consumer protection. The law applies to the sale of used products, but also to long term use products won at contests or given for free by the seller.
In the category of products should be noted that, under the rule of Law. 449/2003, durable consumer goods and non-durable consumer products have no longer a different legal regime, all products – be it cars, shoes, appliances, clothes, audio, video or simply a broom – will be subject to the same rules.
However, there are some product categories (exceptions) to which are not applicable the rules stipulated by Law no. 449/2003, as follows:
- goods sold following the confiscations within forced execution or procedures based on a document issued by the court;
- gases that are not packaged in a limited volume or a fixed quantity
2. Legal guarantee of conformity
The guarantee of conformity is mandatory from the legal point of view for the tenderer. Contractual terms or agreements concluded before the lack of conformity to be known by the consumer and notified to the seller that limits or removes, directly or indirectly, consumer rights provided by Law no. 449/2003, are considered null.
The seller is bound to deliver products that comply with the contract of sale, regardless of the form in which ends, verbal or written.
It is considered that a product is in conformity with the contract of sale if the following conditions are cumulatively met:
a) the product is suitable to the description made by the seller and has the same qualities as the products presented them by the seller as a sample or model;
b) the product satisfies any specified purpose requested by the consumer, purpose made known and accepted by the seller at the conclusion of the sale;
Non-compliance is considering those situations in which seller fail to comply the obligation undertaken by contract to deliver to customer the fit for purpose product requested. This situaton is considering cases where the consumer needs products with certain characteristics, and to get them should conclude a contract by which the economic agent undertakes either to manufacture a product with these features or to modify a product to give the desired characteristics by the consumer.
c) product is suitable for the purposes for which they are normally used products of the same type;
Non-compliance in this case fits perfectly into the concept of defect, in other words, the product does not work as it should, for example the freezer does not freeze, the shoes break at first wearing, the washing machine motor does not rotate the cuvette, the bulb burns after five minutes of installation etc.
d) presents the quality and normal performance parameters, which the consumer can reasonably expect, given the nature of the product and public statements regarding the specific characteristics thereof, made by the seller, by producer or his representative, particularly by advertising or by the product label registration.
In this case, the lack of conformity is assessed based on two elements, respectively the nature of the product and statements regarding product made especially by advertising or the registration on label.
There is a lack of conformity in the following two situations:
a) the product purchased by the consumer is incorrectly installed by the seller, while the installation is stipulated in the contract as an obligation of the seller;
b) the product intended to be installed by the consumer that was incorrectly installed due to deficiencies in the operating instructions.
The legal guarantee of conformity period is 2 years and are calculated from the date of product delivery.
For used products it may be agreed with the seller to reduce the term of two years, but not less than one year after product delivery.
The legal guarantee of conformity period for products of long term use whose average duration of use is less than two years, shall be reduced this period.
The presumption of lack of conformity involve consideration of product as lacking quality and performance from the purchase.Thus, any lack of conformity occurring within 6 months from the date of delivery of the product is considered to have existed at the time of delivery.
To operate the presumption of lack of conformity is necessary that the seller be informed of this within 2 months from the date when the consumer has found it, but before the expiration of the period of 6 months from the date of delivery of the product.
Outside the period of six months, the consumer may further invoke the the term of two months in which should inform the seller of the lack of non-compliance(term that flows from the date in which the consumer has found the non-conformity) until the expiration of the period of two years. In this case, the consumer must prove that the product was lack of conformity at handing. If the consumer does not notify the seller within this period, he will not be able to request the remedy of lack of conformity.
Within the presumption of lack of conformity the obligation to prove that the product was without conformity at handing belongs to the seller and not to the consumer. However, this rule is only available within the period of 6 months from the date of delivery of the product.
Presumption of lack of conformity can not be invoked when:
- is incompatible with the nature of the product – this occurs generally for products whose lifetime is less than 6 months, for example food;
- is incompatible with the nature of lack of conformity – the lack of conformity is caused by the incorrect usage of the product by the consumer or normal wear of the product (eg shoes, clothes).
3. Commercial or conventional guarantee – guarantee contract
Commercial or conventional guarantee is the warranty which the seller or manufacturer voluntarily attach, under the conditions set by him and that once given, becomes legally binding.
Due to that provision shall require some clarifications:
- we deal with a contract between the seller or manufacturer, on the one hand and consumers on the other hand, by which the seller / manufacturer assumes free, the obligation to ensure that the product sold to the consumer match the conditions set forth in the statements concerning the warranty or advertising relating thereto, and if it does not return the value, repair or replace the product;
- the guarantee provided by Law no. 449/2003, in terms of the legal nature, is a contractual guarantee, known as conventional or commercial warranty. It is necessary to be done such a clarification to prevent confusion with other types of guarantees, but also to establish the exact place in the Romanian civil law.
Conclusion of a contract of guarantee is not compulsory for the seller / producer only if he makes some statements concerning a possible guarantee of such guarantee or mentions grant of such a commercial guarantees in advertising of the product.
The time of conclusion of the contract, if exist from the seller / manufacturer such of public statements, is considered to be the time of conclusion of the contract of sale, because the consumer accepts in the same time the offer concerning at the commercial warranty.
If there is no such public statements the the time of conclusion of the contract is when the consumer accepted the offer from seller / manufacturer.
The law does not provide a particular form for the guarantee contract. However, if the costumer requests so, the contract must be given in writing or on any durable medium. This can be done as an independently document – the guarantee certificate.
For long term use products, the guarantee certificate is mandatory, even if no commercial guarantee is given.
First of all, the commercial guarantees should include mentions of the consumer rights which are provided by law and attesting clearly that these rights are not affected by warranty. These statements may be formulated in a general way, such as consumer rights are those stipulated in Law no. 449/2003, in particular art. 9-14, or may be listed by reproducing articles of law in the content of the commercial guarantee.
The mention that your rights as a consumer are not affected by the commercial guarantee must be expressly provided.
Secondly, the commercial guarantee must contain the mandatory clauses concerning:
- the identification elements of the product;
- the warranty term;
- ways to ensure the guarantee – maintenance, repair and replacement;
- the name and address of the seller;
- the name and address of the specialized service.
Finally, the commercial guarantee must be written in simple and understandable terms. Regarding this aspect, since it is a contract between a trader and a consumer for the provision of services, the commercial guarantee must comply the provisions of Law no. 193/2000 on abusive clauses from contracts concluded between traders and consumers too.
It should be mentioned that lack of these binding elements does not affect the validity of the commercial guarantee. Thus, if they miss these elements, the commercial guarantee remains valid. In this case the consumer can use the statements made by the seller / manufacturer and may require from seller the compliance of the obligations laid down in these statements.
As we saw above commercial guarantee must expressly mention that the consumer rights conferred by law are not affected by the commercial guarantee offered.
As a reinforcement of this, the law prohibits contractual terms or agreements concluded between the seller and the consumer before the lack of conformity be known by the consumer and notified to seller which limits or removes, directly or indirectly, the consumer rights provided by law. Such contractual terms or agreements are become fully null.
The goal of the obligation to mention within the commercial guarantee for consumer rights as well as the certificate that these are not affected by the commercial guarantee is to provide to consumer the informations about existence of other ways of solving issues. Having regard to art. 25 of Law no. 499/2003, under which the rights of consumers stipulated by this law shall be exercised without prejudice to any other rights which the consumer may invoke under other statutory provisions who governing contractual or non-contractual liability, we conclude that we are in the presence of an option right to the legal basis which the consumer may rely to solve his problem.
Although the law does not provide anything, our opinion is that the commercial guarantee must provide consumers certain benefits in addition to the legal guarantee, such as extended the warranty period, extend the period for acting the presumption of lack of conformity, etc.. and not only to reproduce the content of the legal guarantee of conformity.
As we have seen, the commercial guarantee is a contract between the seller / manufacturer and consumer. Therefore, as long as the legal rights of consumers are not affected by this contract , the commercial guarantee may cover many different aspects: the duration of the warranty period, the duration of prescription of the lack of conformity, the ways to tackle the lack of conformity etc.
We present some examples of commercial guarantee:
The guarantee period. The guarantee can offer a period greater than 2-year warranty required by law or a smaller one.
If the guarantee is higher the tenderer may state that the rights stipulated by law remain unchanged for the additional period or may provide new ways to ensure the guarantee.
If the guarantee period is lower, we believe that this stipulation must necessarily be accompanied by a clause which improves the legal guarantee.
Ex. The guarantee period is one year. For this period the consumer will automatically receive the replacement of the product at the appearance of lack of conformity except in cases in which the lack of conformity is minor.
Prescription of the lack of conformity. The tenderer may extend the period for which operate the presumption of lack of conformity, such as a year or throughout _ the period of legal warranty. Instead, the term for which operate the presumption can not be reduced, this being equivalent to a restriction of consumer rights, what entail am absolute nullity of of such a clause.
Ways of remedying the lack of conformity. The tenderer may state within the commercial guarantee that the product who has a lack of conformity will be replaced directly, without an existance of a right to choose between repair and replacement. Although in this case is eliminated a right of the consumer, we are not witnessing at a limitation of his rights, because of the nature of the replacement measure that presents benefits for the consumer toward repair.
Also, the tenderer may state within the commercial guarantee that it will refund the purchased of the product, whenever there is a lack of conformity at consumer demand.
4. Guarantee for hidden defects
For the purposes of the legislation for consumer protection, the term of hidden defect is defined as a qualitative deficiency of a product delivered or service rendered, who was not known and can not be known by the consumer through the usual means of verification.
The conditions to be considered a hidden defect are:
- consumer did not knew and, as circumstances, through a normal check, but careful, he could not known, being uncommunicated by the seller;
- have existed at the time of conclusion of the contract;
- be seriously.
In assessing the fulfillment of the first condition will be considered prudent and diligent consumer. Thus, the lack of information, experience and inability of the consumer do not do that vices which he could not find alone be considered hidden defects.
The second condition is fulfilled when the handing of the product is made after the conclusion of the contract.
For defects occurred after contracting – the product is damaged or loses its quality due to defects arisen after the sale – the seller does not respond, because through the effect of concluding the contract, the risks pass to the consumer with the property rights.
If the property is not transmitted from the time of conclusion of the contract, the seller is liable for defects arisen after the sale too, but until transferring the property rights.
The third condition is satisfied if due to the defect :
- the product is improper for the usage to which is intended by nature or according to agreement;
- the use value of the product is reduced so much that in your knowledge of the facts, you would not have bought or have paid a lower price.
The burden of proof on the consumer fulfillment of the conditions.
If there is a hidden defect the consumer has a right to choose between:
- rescission of sale – redhibitorie action;
- reduction of price – estimator action;
- troubleshooting / replacing the product;
Avoidance of the contract is admissible even when the defect does not make the product absolutely unsuitable for its normal intended .
The legal effects of cancelation action :
- seller refunded the sale price and the sale expenditure;
- the consumer give the product to seller.
The estimator action operates when the defect is of little importance.
The price reduction will be proportionate with the reduced value of the product due to the defect .
Depreciation of value of the product is estimated by expertise.
Troubleshooting – the solution found in practice – operates in the following situations:
- it is possible to repair the product;
- repair would not entail disproportionate costs to the product value;
- the solution does not contravene your interests.
Troubleshooting / replacement of product will be made in maximum period established by regulation or, where appropriate, by contract. This period runs from the date of completion of technical expertise carried out by a neutral organization (art. 13 – GO no. 21/1992 on consumer protection).
Damages may be awarded if the consumer proves that the seller was dishonest (he known of product defects).
Seller’s liability for hidden defects can be engaged throughout the average duration of use – the timeframe established in normative technical documents or declared by the manufacturer or agreed by the parties, in which durable products must maintain the functional characteristics if they have been followed the conditions of transport, handling, storage and use.
Are distinguished the following cases:
- the seller did not know the existence of hidden defects – the term is 6 months;
- the seller knew there defects and cunningly hid them – the term is 3 years.
Deadlines begin to run from the date of discovery of hidden defects, but no later than one year of the delivery of the product in the first case.
Periods of 6 months and a year, are regarded as the limitation period in which the hidden defects must be discovered , these being not susceptible to interruption or suspension.
5. Sellers liability
The seller is liable to the consumer for any lack of conformity which exists at the time the goods were delivered.
In case of lack of conformity, the consumer has the right to require the seller to bring the product into compliance.
The consumer can choose how he wants to be brought into conformity the product (replacement, repair, terminate the contract price reduction), provided that the means chosen are not disproportionate or impossible.
A redressive measure is considered disproportionate if it imposes unreasonable costs on the seller in comparison with the other redressive measure and impossible if the seller does not have an identical product for replacement.
In assessing the reasonableness of costs will take into account the value of goods, without the lack of conformity, the importance of the lack of conformity, any inconvenience caused by the consumer.
Regarding how to update compliance, the consumer may request repair of the product firstly, then replace it, and eventually the corresponding reduction of price or rescission of the contract.
In all cases, the retrofitting is free.
Free term refers to all costs necessary for them to compliance, including postage costs, transportation, diagnosis, expertise, removal, installation, labor, material used, packaging.
Repair or replacement of products must be brought out in a reasonable period agreed between the consumer and seller, and without any significant inconvenience for the consumer. The reasonableness of the time period and the existence of inconveniences are analyzed according to the nature of the product and the purpose for which it was purchased.
The established period of time shall not exceed 15 calendar days from the date on which the consumer notifies the seller the lack of conformity of the product or gives the product to the seller or its representative on a basis of a handover document. To operate the repair or replacement of products it is necessary that shortcomings not be attributable to the consumer.
When repairing the product will be installed only new parts.
For the replaced/fixed product the economic operator has the same obligations as for the original product. The long term use products replacing defect products will have a new guarantee period.
The time the product didn’t function due to a lack of conformity during the guarantee period, prolongues the guarantee period (legal or commercial).
Corresponding reduction of the price or rescission of the contract occur in three cases:
a) the consumer has not received neither repairing or replacing the product.
b) the seller has not take the remedy measure within a reasonable time.
c) the seller has not take the remedy measure within 15 days, without significant inconvenience for the consumer.
Some remarks should be made about the the corresponding reduction of the price and the contract rescinded.
Firstly, rescission of the contract involves its abolition and reinstating the parties in the previous situation of concluding the contract, that restitution of the benefits made by each the other: the consumer must return the the product and the seller must return the amount paid at the conclusion of the contract. Secondly, rescission can not be required when the lack of conformity is minor.
Corresponding reduction of price means that, if all conditions mentioned above are satisfied, the consumer agrees to keep the product, even if it is affected by a lack of conformity, and the seller is obliged to refund a the part of the price paid by the consumer, corresponding whith the affected part of the product.
For long term use products defected during the legal guarantee period, when they cannot be repaired or when the cumulated non-functioning period is more than 10% from the guarantee period, the seller should replace them or refund the price.
The seller can be obliged to pay damages according the contractual provisions or legal provisionsboth in case of repair or replacement of the productsas well as if the consumer has suffered losses as a result of deficiencies noted within the guarantee period.
Solving the request payment of moral damages and damages related to remedying or replacing the products is the responsibility of the court or the competent organ of mediation.
The seller does not respond in the following situations:
a) the consumer, at the time of concluding the contract, knew or he could not, in reasonably, be unaware of the lack of conformity or that lack has its origin in the materials supplied by the consumer. This means that the seller is not responsible for an apparent defect which the consumer could noticed or would have had to be noticed and neither for the lack of conformity which is not the result of an personal fault.
b) the seller prove that he did not know and could not have, in reasonably, to know the public statements made by the manufacturer or his representative;
c) the seller proves that public statements made by the manufacturer or his representative were corrected at the time of conclusion of the contract of sale;
d) the seller proves that the decision to buy the product could not be influenced by public statements in question.
In legal terms, distribution of products involves a series of separate and bilateral contracts. This succession includes: the manufacturer, the en gros seller, the en detail seller, the importer if applicable, the final consumer.
Law no. 449/2003 governing the action of the consumer against the immediate seller who, in turn, will turn against his own seller and so on until the the seller guilty of failure which often proves to be the manufacturer or the producer.
However, if the seller directly gave wrong indications on how to use the product, liability can stop to him, even if the the product would have had some flaws, but who would not led to any damage produced in terms of an appropriate use.
The law does not expressly provide for a direct action based on legal guarantee against a more distant seller as provided some legal systems, but only against the immediate seller . The premise that the immediate seller corresponds best to consumer expectations depends on the circumstances. Thus, if a product who wears a famous brand was purchased, the consumer can expect that the manufacturer of the product has a better guarantees system put in place, so would prefer to address directly to manufacturer.
In such a situation should contact the seller to find out if exist or not a service unit authorized in Romania. If the seller does not respond, can contact the ECC Romania.
6. European Guarantee
According to European legislationthe notion of warranty is understood as the commercial guarantee that the economic operator manufacturer, importer or seller offers, voluntarily to consumer.
In essence, Directive 1999/44/EC states that guarantees for the purposes of trade voluntary, yet become binding on the one that declared in any form, so that consumers can have a legal basis if failure to fulfill obligations in the situation provided therein. So, if by a advertising or guarantee certificate 5 year warranty is providedthen this is mandatory for the trader.
Each EU member state has its own regulations on the warranty – if a warranty certificate may be issued or not, if the bill recived from the store is sufficient to request the product into conformity, etc. In Romania, for example, the durable consumer products requires obligation for the seller to hand the consumer, besides the instructions for use, installation, operation, maintenance, issued by the manufacturer, and guarantee certificate.
To obtain information regarding regulations in the field specific to each Member State, consumers may contact the European Consumer Centre Romania.
The so-called European warranty certificate does not exist, sellers are not obliged to issue such a certificate just because the product is marketed in the EU. But if in the guarantee certificate is mentioned that the warranty is European, then the consumer can request the application of safeguards in any of the EU Member States, including Romania.
However, if guarantee certificate does not provide it, then cannot request application of the guarantee only in the country from which you purchased the product. So, are very important provisions the warranty certificate or advertisements made by the trader in this regard.
Not infrequently happened that the service units from Romania refuse to repair a product purchased from another EU Member State on the ground that it was not purchased from Romania or that the personnel does not have the necessary training to repair that type of product or they do not have spare parts for the repairs or, more than this, that they don’t have contract with that seller.
But if in the guarantee certificate or public statements made by the seller mentions that European warranty applies for the product and is valid in Romaniathen the legal representative of seller in Romania is obliged to accept the defective product in the service and fix it.
The seller is responsible for the lack of conformity of product for a period of 2 years from the date of delivery of the product. Giving legal guarantee for two years for products is a minimum requirement for each Member State. If the product fails within 6 months of delivery it is assumed that the product was lacking of conformity from the delivery- Presumption of lack of conformity – the seller is obliged to demonstrate to the consumer that the product has not been lacking conformity at teaching.
To operate the presumption of lack of conformity is necessary that the seller be informed of this within 2 months from the date on which the consumer found it, but before the expiry of 6 months from the date of delivery of the product.
If within the period of 6 months the product does not present a conformity, this is considered to comply with the contract.
The 2 month term should not be interpreted restrictively is applicable the situation where lack of conformity becomes apparent within two years as from delivery of the product.
Whether we’re talking 6 months or 2 years in case of non-conformity of the product, the consumer is justified to ask:
- free repair or replacement within a reasonable time and without inconvenience to the consumer;
- the corresponding price reduction or rescission of the contract, if repair or replacement is impossible or disproportionate or seller has not repaired in a reasonable time or without major inconvenience for the consumer; the rescission of the contract does not operate if the lack of conformity is minor.
Do not forget! Products benefits from a legal guarantee for 2 years, so any lack of conformitywhich appeared within this period must be assumed by the seller at no cost to the consumer.
Any lack of conformity of the product for 6 months is presumed to exist from the date of delivery of the product, in this case the seller is obliged to prove that the product was according to delivery.
Any lack of conformitythat appeared in the legal warranty period must be notified to the seller within 2 months after the defect occurred.
According to Directive 1999/44/EC the seller is directly liable towards the consumer for any lack of conformity of the product. Therefore, he can not hide behind the manufacturer or supplier. Consumers do not have to accept it, even if it has manufacturer’s warranty. The seller is the one with which the consumer has vânzare-cumpărare/prestări service contract. The seller is therefore responsible for compliance with the contract so for resolving the dispute, it is recommended to consumer to address to seller.
When this thing it proves impossible and the consumer considers that the rights covered by Directive 1999/44/EC have been violated by the seller, it may apply to ECC Romania.
- check before buying the wanted product if it has a warranty, which is the term of warranty and what are your rights under this term, check if the warranty is real or the seller refers only to the statutory right of complaint;
- always ask for a written guarantee should not trust the promises of the seller;
- read carefully the contract and warranty clauses, the most important details are usually well hidden in the printed warranty. Take your time and read carefully the contract / guarantee certificate before buying the product. Be careful, especially when you read the guarantee conditions;
- check if the guarantee is offered for Romania too, you can require repair or replacement of defective product within 2 years of purchase in all Member States, so you can request from the seller to make this statement in the contract;
- however, things are different in the case of commercial guarantee, namely that: in most EU Member States, manufacturers should not give guarantee for their product. And even if they gives its warranty, it should not be applicable in all EU Member States. Therefore, before purchasing a product (eg, a computer, an electrical appliance, and so on), you should check if you can apply warranty rights in your country;
- keep the invoice / guarantee certificate for 2 years after purchasing the product, in all EU Member States You can require replacement or repair of a defective product. When attempting to the implementation of this right, you need to submit an invoice as proof that you are really the owner of the goods purchased from the selleras well as the guarantee certificate, if needed.