(Articles 128-135 of the Consumer Code)
SECTION I: AFTER-SALES GUARANTEES IN BRIEF
- The matter of after-sales guarantees is governed by the Consumer Code, specifically in Part IV, Title III, Chapter I, in Articles 128 to 135;
- It is a legal guarantee, which means that it is always recognised to the consumer and consequently cannot be excluded or limited;
- Even in the event that the defect is attributable to the producer, it always concerns the existing relationship between the consumer and the seller;
- It shall last for a period of two years from the delivery of the goods; actions intended to enforce the lack of conformity not hidden by the vendor with fraud shall in any event lapse after 26 months (24 months and then another 2 months after the date of discovery of the defect) after the delivery of the goods;
- It is applied to all products purchased by the consumer, even to second-hand goods, and comprises also the installation of the assets;
- Through this tool, the consumer is firstly entitled to the repair or replacement of the goods (so-called primary remedies) or, if this is not possible, to reduction or resolution of the contract (so-called secondary remedies);
- The additional warranty offered by the manufacturer or by the seller, the so-called conventional warranty, can be added to the legal guarantee. This additional guarantee has the following characteristics: it is cumulative (being added to the legal one; it is optional (in the sense that it is left to the seller or manufacturer to provide for it, but once offered they remain bound by it); it is costless (in as it does NOT entail additional costs to be borne by the consumer); it is free as regards its duration, object and territorial extent.
SECTION II: FAQs ON AFTER-SALES GUARANTEES
- Which cases shall the legal guarantee apply to?
- What is meant by conformity of the goods with the contract and lack of conformity?
- In which cases is the lack of conformity excluded?
- Who is liable in respect of the consumer?
- What are the seller's obligations?
- When is the seller's liability excluded?
- What is the instrument through which any defect of the purchased product can be reported?
- What can the consumer ask from the seller in the event of a lack of conformity of the goods?
- What is the repair/replacement remedy?
- When is it possible to request a price reduction or termination of the contract?
- How long does the warranty on consumer goods last and what is the time limit?
- Who shall bear the burden of proof of the lack of conformity
- What is the seller's right of recourse?
- Are the rights established in favour of the consumer by the Regulation on warranties on consumer goods mandatory?
- Does a warranty for second-hand goods exist?
WHICH CASES SHALL THE LEGAL GUARANTEE APPLY TO?
From an objective point of view, the regulation of the legal guarantee (articles 128 et seq. of the Consumer Code) is aimed at protecting the consumer from the lack of conformity of the goods with respect to the sales contract. This guarantee shall apply to the following contracts:
- - the sale;
- the "barter";
- the "administration";
- the “tender ";
- -the "contract of services";
- "all other contracts however aimed at the supply of consumer goods to be manufactured or produced".
The legal guarantee also applies to distance or off-premises contracts, regulated elsewhere in the Consumer Code.
In general, the discipline contained in articles 128 et seq. of the Consumer Code applies to contracts that have as their object "consumer goods" intended as any movable items, finished or to be assembled, new or used, tangible or intangible (for example software) as well as registered movable goods (for example vehicles, ships and aircraft). Contracts concerning goods that cannot be considered "consumer goods" such as real estate, water or gas not put up for sale, electricity, items sold by way of execution or otherwise by authority of law, also by delegation to notaries, are excluded from the scope of the legal guarantee regulation.
From an individual point of view, the legislation is applied to contracts concluded between a “consumer”[1] and a “seller”[2].
In the light of the definition provided by law, the notion of "consumer" shall exclude:
- legal entities;
- entities other than natural persons for non-profit purposes (associations, foundations, committees, schools and universities);
- individuals qualifying as "professionals" or entrepreneurs (including individual enterprises) concluding a contract for professional / entrepreneurial purposes.
Consequently, the legal guarantee shall not apply if the purchase methods or other circumstances reveal with reasonable certainty that the purchase itself is not aimed exclusively at private consumption. In this regard, by way of example, it should be noted that the request for the invoice, with the indication of the relative VAT number, theoretically indicates the professional purposes of the purchase, thus excluding the applicability of Articles 128 et seq.
Given that the provisions of articles 128 et seq. of the Consumer Code apply to contracts concluded between a "seller" and a "consumer", the same shall not apply in the case of:
- contracts between consumers;
- contracts between professionals / between companies.
Therefore, both "second-hand" sales from private to private and the supply of consumer goods between companies are excluded.
WHAT IS MEANT BY CONFORMITY OF THE GOODS WITH THE CONTRACT AND LACK OF CONFORMITY?
- Pursuant to article 129 of the Consumer Code, the seller is obliged to deliver goods to the consumer which are in conformity with the sales contract. The principle of conformity therefore requires that the goods delivered correspond to the goods agreed in the contract.
It is assumed that the assets comply with the contract if they:
- - are fit for the purposes for which goods of the same type are normally used (so-called suitability for normal use)[3];
- are fit for the particular purposes[4] made known to the seller at the time of the conclusion of the contract and accepted by the latter, also for conclusive facts (intended as a tacit acceptance of negotiating will);
- comply with the description made by the seller;
- possess the same qualities as the model or sample presented to the consumer;
- 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, where appropriate, taking into account any public statements on the specific characteristics of the goods made about them by the trader (for example billboards), the producer or his representative, particularly in advertising or on labelling..
These circumstances do NOT necessarily have to coexist, as the circumstances from time to time relevant to the individual contract MUST be present (in fact, there will not always be advertising declarations and most of the time the particular use desired by the consumer will be that for which the good is naturally intended).
- The case of incorrect installation
The conformity of the assets also extends to the installation when it is included in the sales contract and was carried out by the seller or under his responsibility.
- The installation by the consumer as well can give rise to a lack of conformity of the goods, in case:
- the product is intended to be installed by the consumer;
- it is installed incorrectly;
- incorrect installation is due to a lack of installation instructions.
For the purposes of assessing the conformity of the asset with the contract, the advertising information, technical data sheets and declarations of the seller prior to the conclusion of the contract assume particular importance. Therefore, inaccurate or misleading information implicates a hypothesis of lack of conformity.
IN WHICH CASES IS THE LACK OF CONFORMITY EXCLUDED?
As a rule, in case the delivered goods are not compliant with the contract, the consumer can complain to the seller about the lack of conformity found. However, the consumer will NOT be able to legitimately invoke the seller's liability if at the time of the conclusion of the contract:
- -he was actually aware of the defect or could not ignore it by resorting to ordinary care;
- -the defect depends on instructions or materials provided by the consumer.
The trader will NOT then be bound by "public statements" made by the seller / producer / agent or representative on the label or in the advertisement, if he proves that:
- - he was not aware of the declaration and could not have knowledge of it;
- - the declaration was adequately corrected by the time of the conclusion of the contract;
- - the declaration did not influence the decision to purchase the consumer good..
WHO IS LIABLE IN RESPECT OF THE CONSUMER?
The seller is liable for "any lack of conformity existing at the time of delivery of the goods" and, therefore, the consumer must always and in any case contact the seller, who is the only person with whom he has established a contractual relationship. The seller's liability is therefore limited to pre-existing defects, discovered later by the buyer. On the other hand, it does not cover any defects that may have occurred, for example, due to improper use by the consumer or third parties. The producer can only be held liable in the first instance for any non-conformity of the goods delivered to the consumer to the extent that he or she can also be called "seller", i.e. if he or she is directly selling them to the consumer. In any case, the hypotheses of direct responsibility of the producer provided for by other regulations remain unchanged. For example, the direct liability of the producer towards consumers is highlighted when the latter has suffered an unfair damage due to a production defect (for any further information, please refer to the Consumer Code, precisely to Part IV "Safety and quality of products", Title I "Product safety", Articles 102 et seq.).
WHAT ARE THE SELLER’S OBLIGATIONS?
The seller has the obligation to deliver to the consumer goods in conformity with the sales contract. This obligation is confirmed by the fact that:
- the goods must have all the characteristics required by the consumer and accepted by the seller or the characteristics proposed by the seller or the producer or his representative;
- the goods must be correctly installed or the instructions for installation by the consumer must be clear..
WHEN IS THE SELLER’S LIABILITY EXCLUDED?
The cases in which the seller's liability is excluded:
- in case of knowledge of the defect by the consumer;
- in case of knowledge of the defect by the consumer with ordinary diligence;
- if the conformity defect derives from instructions or materials provided by the consumer.
The seller is NOT liable for public statements, if he proves that:
- he was NOT aware of the manufacturer's statement and could not know it with ordinary diligence;
- the declaration had been properly corrected before the conclusion of the contract so as to be known by the consumer;
- the decision to purchase the consumer good had NOT been influenced by the declaration.
WHAT IS THE INSTRUMENT THROUGH WHICH ANY DEFECT OF THE PURCHASED PRODUCT CAN BE REPORTED?
The consumer must keep for at least 26 months after delivery of the goods all the documentation relating to the purchase of the consumer goods. If the purchase was made without a written contract or order form, the titles proving the purchase are represented by the following documents: receipt, check coupons, credit card coupons, illustrative documentation of the product, packaging, warranty, etc.
WHAT CAN THE CONSUMER ASK FROM THE SELLER IN THE EVENT OF A LACK OF CONFORMITY OF THE GOODS?
In the event of a lack of conformity, the consumer can ask the seller:
- in the first instance, the repair or replacement of the goods (so-called primary remedies), to obtain the "restoration of conformity" without charge;
- if the first two remedies are not feasible the reduction of the price or the termination of the contract (so-called secondary remedies).
There is therefore a hierarchy between the instruments provided for consumer protection to balance the consumer's interest in receiving the agreed goods and the seller's interest in safeguarding the contractual relationship. To this end, it is possible to resort to price reduction and termination of the contract only in the cases provided for by law (article 130 of the Consumer Code). However, it is without prejudice to the seller's right to offer the consumer "any other available remedy" to settle the dispute amicably, which the consumer will however be free to accept or refuse.
WHAT IS THE REPAIR/REPLACEMENT REMEDY?
In order to eliminate the lack of conformity, in the first instance, the consumer can ask, at his choice, for the "repair" or "replacement" of the goods.
The repair or replacement are free of charge. The seller shall bear the "essential" costs of remedying the lack of conformity, including shipping, labour and materials. However, the consumer's discretion will be limited if the remedy requested is objectively impossible or involves excessive costs for the seller. The impossibility will have to be assessed depending on whether the replacement concerns, for example, non-fungible goods (e.g. a single piece) or whether the repair is not possible because of an irreparable defect. Excessive costs, on the other hand, are linked to "unreasonable expense" for the seller compared with a possible and practicable alternative solution. The legislator prescribes that such an assessment must be carried out taking into account:
- the value of the goods in the absence of the defect;
- the extent of the defect;
-the possibility that the alternative remedy may be carried out without significant inconvenience to the consumer.
The seller may then refuse the requested solution on the grounds that it is impossible or excessively expensive; the consumer will then be entitled to seek the alternative remedy. If this option is also unworkable, the consumer will be able to ask for price reduction or termination of the contract.
The repair or replacement must be carried out by the seller:
(a) within a "reasonable period" within which the seller must perform the required performance;
(b) without causing “significant inconvenience” to the consumer.
This provision is intended to limit the possibility that the timing of repair or replacement will be excessively long or that the performance of the required remedy will cause serious inconvenience to the consumer.
The determination of the "reasonable term" and the "significant inconvenience" have to be established in relation to the "nature of the good" and the "purpose for which it was purchased". The determination of the 'reasonable time limit' and the ' significant inconvenience' should therefore be made with reference to the product sector to which the goods belong and on the basis of the parameters referred to above..
WHEN IS IT POSSIBLE TO REQUEST A PRCE REDUCTION OR TERMINATION OF THE CONTRACT?
Price reduction or termination of the contract are options that the consumer can only exercise if the request for repair or replacement of the defective good has not been successful. The legislator's intention is, therefore, to safeguard the contractual relationship as far as possible and to amount to price reduction and termination as exceptional remedies that can only be exercised under specific conditions. More precisely, the consumer will be able to ask, at his choice, for an appropriate price reduction or termination of the contract if:
- repair or replacement is impossible or excessively expensive;
- the seller has not repaired or replaced within a reasonable period of time;
- the repair has caused significant inconvenience to the consumer.
However, the consumer's choice is limited to the seriousness of the defect. In fact, if the defect (for which it was not possible to carry out the remedy of repair or replacement) is "minor", only a price reduction can be claimed. A "minor defect" must be intended as in any way not affecting the use of the goods. It should also be pointed out that in order to determine the amount of the reduction or the sum to be returned, the use of the goods must be taken into account, which will lead to a lower or higher depreciation of the product.
HOW LONG DOES THE WARRANTY ON CONSUMER GOODS LAST AND WHAT IS THE TIME LIMIT?
The seller is liable for conformity defects (existing at the time of delivery) that occur within 2 years after delivery of the goods. For used goods, the seller and the buyer may agree to provide for a shorter period of liability, but in any case not less than one year. To benefit from the legal guarantee, the consumer must report the lack of conformity to the seller within two months from the date on which he discovered the defect. However, the report will not be necessary if the seller has maliciously concealed the defect or acknowledged its existence (art. 132, paragraph 2, Consumer Code).
After reporting the defect, the consumer can ask for the repair or replacement of the goods and, if the extremes apply, the reduction of the price or termination of the contract. The action to enforce the defects not maliciously hidden by the seller shall be prescribed, in any case, within 26 months from delivery.
WHO SHALL BEAR THE BURDEN OF PROOF OF THE LACK OF CONFORMITY?
The seller is only liable for defects existing at the time of delivery. The legislation divides the burden of proof between the seller and the consumer, depending on when the defects occur. Two situations can be distinguished:
- Unless proved otherwise, it is presumed that defects of conformity which become apparent within 6 months of delivery of the goods already existed on that date (article 132 paragraph 3 Consumer Code). It is then up to the seller to prove that the goods were in full conformity, i.e. that the defect complained of by the consumer occurred after delivery.
- If instead the defects occur after 6 months from delivery, the consumer will have to provide proof that the defect was present at the time of delivery. In that case, the consumer will then have to prove:
- that he has purchased the goods;
- that the goods have a lack of conformity within the meaning of the law;
- that the defect existed at the time of delivery, even though it appeared later;
- that the limitation and prescription periods have been respected.
The distribution of the burden of proof therefore constitutes an incentive for the consumer to verify the conformity of the goods in detail and to make a prompt objection of any defects.
WHAT IS THE SELLER’S RIGHT OF RECOURSE?
Recognition of the right of recourse avoids that the costs of any defects in the goods are borne exclusively by the seller, ensuring, in principle, a fair sharing of the business risk throughout the entire distribution chain; in fact, the lack of conformity depends on an action/ommission by the manufacturer, by a previous seller in the same contractual chain or by any other intermediary, in respect of which the seller can claim from the person or persons responsible, belonging to the aforementioned distribution chain, the reimbursement of expenses incurred to meet the consumer's demands.
The possibility of recourse is subject to the following conditions:
- the seller has complied with the remedies requested by the consumer;
- the seller has not agreed otherwise in the contracts signed with these parties, nor has he waived this right;
ARE THE RIGHTS ESTABLISHED IN FAVOUR OF THE CONSUMER BY THE REGULATION ON GUARANTEES IN CONSUMER GOODS MANDATORY?
While the guarantee provided for in Articles 1490 et seq. of the Civil Code can be derogated contractually, the protection offered by the Consumer Code to the consumer can not be reduced by the will of the parties; this in fact refers to inalienable rights granted to the consumer. The legislator establishes in fact that any agreement, prior to the communication to the seller of the lack of conformity, aimed at excluding or limiting the rights granted, even indirectly, is to be considered null and void.
The nullity can be asserted only by the consumer and can be detected by the court of its own motion. Finally, the overall legal framework placed at the consumer's disposal is guaranteed by article 135 which specifies that the protection granted to the consumer does not exclude or limit the rights granted to the consumer by other regulations, such as, for example, that concerning the producer's liability for damage from defective products or the more favourable regulations provided for by the Civil Code..
DOES A WARRANTY FOR SECOND-HAND GOODS EXIST?
The legal guarantee for the sale of consumer goods also applies to second-hand goods, provided that the seller carries out a commercial activity. It does NOT apply, therefore, to second-hand goods covered by a contract between private consumers. It is provided, with the express agreement of the consumer, that the duration of the seller's warranty is limited to a period of time that, in any case, can NOT be less than 1 year (this minimum duration is mandatory, as provided by article 134, paragraph 2, of the Consumer Code).
As regards second-hand goods for which a warranty of less than two years is agreed by the parties, the action to enforce the lack of conformity is prescribed within the shorter warranty period agreed to which must be added the two months necessary to report the defect (e.g. 14 months if the minimum period of one year has been agreed).
The seller's warranty on used goods only applies to defects NOT arising from the normal use of the goods and the previous time of use must be taken into account.
SECTION III: REGULATORY REFERENCES
- Codice del Consumo (articles 128-135 Consumer Code)
- Direttiva 1944/44/CE (Directive 1944/44/CE)
- Directive 771/2019 on certain aspects of contracts for the sale of goods , amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, repealing Directive 1999/44/EC (to be transposed by 01/07/2021).
- Explanatory note on the new rules on guarantees in the sale of consumer goods - OFFICE C3 National Policies and Consumer Rights (former Ministry of Productive Activities - DGAMTC, at present Ministry for Economic Development)
SUPPORT SERVICE
- CONSUMER ASSOCIATIONS REGISTERED IN THE MINISTERIAL LIST
- FOR ITALIAN ECC CROSS-BORDER ISSUES (ADICONSUM- Italian Association for Consumer Protection and Environment)
[1] By "consumer or user" is meant "any natural person acting for purposes unrelated to the entrepreneurial, commercial, artisan or professional activity possibly carried out" (article 3 letter a) of the Consumer Code). Therefore, traders and professionals as well can be considered consumers, provided that they have acted for purposes that do not fall within the commercial or professional activity eventually carried out.
[2] By "seller" is meant "any public or private natural or legal person or entity which, in the exercise of its business, commercial or professional activity, uses the contracts referred to in paragraph 1" (art. 128, paragraph 2, letter b, of the Consumer Code).
[3] By normal use is meant the use for which goods of the same type are usually employed.
[4] By particular use, is meant the use intended by the consumer made known by the consumer to the seller at the time of conclusion of the contract and which the seller has accepted also for conclusive facts.