Warranty

1. What is the regulatory framework of reference?
The introduction in our system of a discipline on "After-sales guarantees of consumer goods", took place with the transposition of the 1999 / 44 / CE Directive on "certain aspects of the sale and guarantees of consumer goods".

The transposition of the EU directive was initially transfused, through Legislative Decree 2 February 2002, n. 24, in Book IV of the civil code (articles from 1519-bis to 1519-nonies).

Subsequently, with the adoption of the Consumer Code (Legislative Decree 6 Settembre 2005, n. 206) the discipline on guarantees has been merged into the same Consumer Code Part IV, Title III, Chapter I, to articles from 128 to 135.

2. What are the characteristics of the legal guarantee on consumer goods?

  • has a duration of two years
  • this period starts from the delivery of the goods
  • it is a legal guarantee, which means that it is always due to the consumer (it cannot be excluded or limited)
  • also applies to used goods
  • the consumer is also protected in the installation of the good
  • firstly it allows the repair or replacement of the goods or if this is not possible, the reduction of the price or the termination of the contract.
  • regards the relationship between consumer and seller (even if the defect is attributable to the manufacturer)
  • to this can be added the additional guarantee offered by the manufacturer or seller (commercial guarantee).

3. What contracts are covered by the legislation on guarantees on consumer goods?
Article. 128, paragraph 1 of the Consumer Code establishes that Chapter I (of the sale of consumer goods) "regulates certain aspects of the sale and guarantees of consumer goods". However, its scope is wider.
In fact, its provisions apply not only to the "sale" contract, but also to other "equivalent" contractual figures:

  • the "exchange";
  • the "administration";
  • the contract ";
  • the "work contract";
  • "All other contracts, however, for the supply of consumer goods to be manufactured or produced".

The regulation on guarantees therefore concerns the generality of contracts characterized by the transfer of a movable asset to a consumer.

Also included are contracts concluded with special methods such as, for example, those stipulated outside business premises or distance contracts, regulated elsewhere in the Consumer Code.

4. What is the notion of "consumer good"?
The provisions of the articles 128 and ss. of the Consumer Code on the subject of guarantee apply to contracts concerning "consumer goods".
According to the legislative provisions, for consumer goods it is to be understood "any movable asset, also to be assembled".
All movable goods will therefore be consumer goods:

  • material or immaterial;
  • finished or to be assembled;
  • new or used.

as well as the CDs, registered movables, ie those assets (art.815 Cod.civ.) that are registered in public registers, such as, for example, cars, ships and aircraft.

The national legislator has accepted a broader notion than that contained in directive n. 44 / 99, referring only to material goods. It will therefore be possible to include software among consumer goods, for example.
The provisions of the decree apply to goods used only for "defects that do not derive from the normal use of the thing" and "taking into account the time of previous use".

They cannot instead be considered consumer goods:

  • the buildings;
  • water and gas not packaged for sale;
  • electricity;
  • assets subject to forced sale or otherwise sold in other ways by the judicial authority, including by delegation to notaries.

5. What are the subjective limits of the application of the discipline?
The provisions of the articles 128 and ss. of the Consumer Code apply to contracts concluded between a "seller" and a "consumer".

The consumer is defined by the art. 3, lett. a) of the Consumer Code as "any natural person who acts for purposes unrelated to his business, commercial, craft or professional activity".

There are two fundamental requirements to be defined as "consumers" and to benefit from the protection provided:

  • be natural persons;
  • conclude the contract to meet requirements other than those of the entrepreneurial or professional activity carried out.

Even traders and professionals can therefore be considered consumers, but under the strict condition that they have acted for purposes that are not part of commercial or professional activity.

From the literal interpretation of the rule in question it follows that they cannot be considered consumers:

  • legal persons;
  • institutions other than natural persons (associations, foundations, committees, schools and universities);
  • professionals (including natural persons) or entrepreneurs (even sole proprietorships) who conclude a contract for professional / entrepreneurial purposes.

The legislative provisions therefore will not apply whenever the purchasing methods or other circumstances show with reasonable certainty that it is not aimed at private consumption.

For example, the invoice request, indicating the VAT number, theoretically assumes the professional purpose of the purchase excluding the applicability of the articles. 128 and ss.6. What are the exclusions of the discipline under the profile of the subjects that conclude the contract?
The provisions of the articles 128 and ss. of the Consumer Code apply to contracts concluded between a "seller" and a "consumer".

The following are excluded:

  • consumer contracts;
  • contracts between professionals / between companies.

Consequently, both "second-hand" sales from private to private, and supplies of consumer goods between companies are excluded.

7. What is meant by conformity of the good to the contract and lack of conformity?
The most innovative aspect of the new legislative provisions concerns the introduction of the principle of conformity of the good to the contract.

With the new legislation, the seller's obligation to deliver to the consumer "goods in conformity with the contract" arises from the conclusion of the contract. In simple terms, the good delivered must correspond to the good agreed in the contract.

It is assumed that the good complies with the contract if:

  • is suitable for the use for which goods of the same type are normally used;
  • is suitable for the particular use made known to the seller at the time of conclusion of the contract and accepted by the latter, also for conclusive facts;
  • it conforms to the description given by the seller and possesses the same qualities as the model or sample presented to the consumer;
  • presents the qualities and usual performance of a good of the same type, which the consumer can reasonably expect, given the nature of the good and, if necessary, the "public statements" made by the seller, the manufacturer or his agent or representative, in particular on advertising or labeling.

The four conditions must, where relevant, be simultaneously satisfied for the seller to enjoy the presumption of conformity of the product.

The lack of conformity therefore has a wider scope than the "defects" established by art. 1490 of the Civil Code.

8. How should the requirements of the goods declared by the seller and advertising be understood?
It should be emphasized that the advertising information, the technical sheets and the declarations of the seller prior to the conclusion of the contract become of particular importance to determine compliance with the contract.

Therefore, incorrect or misleading information adds to the lack of conformity.

9. Does the conformity of the good to the contract also concern the installation?
Even the "imperfect installation" integrates the lack of conformity if:

  • it depends on the lack of instructions, when done by the consumer;
  • is performed by the seller as included in the contract.

10. When is the lack of conformity excluded?
Where the goods delivered are not in compliance with the contract, the consumer can dispute the conformity defect found to the seller.

However the consumer cannot legitimately invoke the responsibility of the seller if at the time of the conclusion of the contract:

  • he knew the fault or could not ignore it using ordinary diligence;
  • the defect depends on instructions or materials provided by the consumer.

Furthermore, the "particular use" desired by the consumer must have been made known to the seller and accepted by the seller, even for conclusive facts.

The seller will not then be bound by the "public statements" made by the seller / producer / agent or representative, present on the label or in the advertisement, if he proves that:

  • he did not know the declaration and could not know it;
  • the declaration was properly corrected by the time the contract was concluded;
  • the declaration did not influence the decision to purchase the consumer good.

11. Who is responsible to the consumer?
It is the seller who is responsible for "any lack of conformity existing at the time of delivery of the goods".

The seller's liability is therefore limited to pre-existing defects discovered by the purchaser at a later date. On the other hand, it does not affect any defects that occur, for example, due to improper use by the consumer or third parties.

The producer, only to the extent that he can also be said to be a "seller", that is, if he exercises direct forms of consumer sales, may be called upon to respond in the first instance to any non-conformity of the goods delivered to the consumer.

However, the hypotheses of direct responsibility of the producer as envisaged by other regulations (eg Presidential Decree No. 224 / 88 on damage from defective product) remain unaltered.

12. What can the consumer ask the seller in the presence of a lack of conformity of the goods?
In the presence of a lack of conformity, the consumer can ask the seller:

  • in the first instance, the repair or replacement of the asset, to obtain the "restoration of conformity" without charges;
  • if the first two remedies are not practicable the reduction of the price or termination of the contract.

There is therefore a hierarchy between the tools provided to protect the consumer to balance the consumer's interest in receiving the agreed asset and the seller's interest in safeguarding the contractual relationship.
To this end, it is possible to resort to reducing the price and terminating the contract only in the cases envisaged by the law.

The seller is entitled to offer the consumer "any other remedy available" to amicably settle the dispute, which the consumer will however be free to accept or refuse.

13. What is the remedy of repair / replacement
To eliminate the lack of conformity, in the first instance, the consumer may request, at his choice, the "repair" or "replacement" of the goods.

Repair or replacement is free. The seller is responsible for the "indispensable" costs for rectifying the lack of conformity, including shipping, labor and materials.

However, the consumer's discretion will encounter a limit if the requested remedy is objectively impossible or involves excessive costs for the seller.

The impossibility will be assessed according to whether the replacement concerns, for example, non-fungible goods (eg a single piece) or that the repair is not possible due to an irreparable defect.

Excessive onerousness instead involves "unreasonable expenses" with respect to the alternative, possible and feasible solution. The legislator requires that this evaluation be carried out taking into account:

  • of the value of the asset in the absence of the defect;
  • the extent of the defect;
  • of the possibility that the alternative remedy may be experienced without significant inconvenience to the consumer.

The seller can therefore refuse the requested solution because it is impossible or excessively expensive; the consumer will then be entitled to request the alternative remedy. If this option is also impractical, the consumer may request a price reduction or termination of the contract.

14. What is meant by "reasonable deadline" and "significant inconvenience"?
Repair or replacement must be performed by the seller:

a) within a "reasonable time" within which the seller must perform the service requested;
b) without causing "significant inconveniences" to the consumer.

This provision intends to limit the possibility that the time required for repair or replacement will expand excessively or that the performance of the requested remedy will cause serious inconvenience to the consumer.

The concepts of "reasonable term" and "significant inconveniences" are variable.

The legislative provisions establish that the "reasonable term" and "the significant inconvenience" must be established in relation to the "nature of the good" and the "purpose for which it was purchased".

Preliminary work fanno reference also to the "type of defect" (whether or not it affects the functionality of the asset) and to the "period of the year" in which the defect occurs (eg holidays of the seller / supplier / repairer, holiday period; Christmas period, etc.).
The determination of the reasonable term and of the considerable inconvenience should therefore be performed with reference to the product sector to which the asset belongs and on the basis of the parameters mentioned above.

15. When is it possible to request a price reduction or termination of the contract?
The price reduction or the termination of the contract are options that the consumer can exercise only if the request to see repaired or replaced the defective good has not been successful.

The intention of the legislator to safeguard the contractual relationship as much as possible represents the reduction of the price and the resolution as exceptional remedies and therefore only to be found under precise conditions.

More precisely, the consumer may request, at his option, a reasonable 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 time;
  • the repair has caused considerable inconvenience to the consumer.

However, the faculty of choice given to the consumer encounters a limit in the severity of the defect. In fact, if the defect (for which it was not possible to carry out the remedies for repair or replacement) is "slight", only the price reduction may be requested.

It should also be noted that to determine the amount of the reduction or the sum to be returned, the use of the asset must be taken into account, which will result in a lower or greater depreciation of the product.

According to the explanatory note of the Ministry of Economic Development (formerly Productive Activities) due to a minor defect, it must be understood that what does not in any way prejudice the use of the asset.

16. How long does it last and when does the consumer goods warranty apply?
Among the qualifying aspects of the discipline contained in the decree n. 24 / 02 there is no doubt the temporal extension of the legal guarantee on consumer goods.

The seller is in fact responsible for the lack of conformity (existing at the time of delivery) that occurs in the 2 years following the delivery of the goods.

For used goods, the seller and the buyer may agree to provide for a shorter liability period, but not less than one year.

The consumer, if he finds a lack of conformity, to take advantage of the protection, will have to challenge it to the seller within two months from the discovery.

However, the dispute will not be necessary if the seller has intentionally concealed the defect or acknowledged its existence.

After the complaint of the defect, the consumer may request the repair or replacement of the good and, if the extremes occur, the price reduction or the termination of the contract. In any case, the action expires within 26 months from delivery.

There is a case in which the legal guarantee can be enforced beyond the statute of limitations and is when the seller sues the consumer for the performance of the contract (eg the payment of the price). In this case the latter "may always enforce the guarantee if he has reported the defect within two months of the discovery and in any case before 26 months from delivery".

17. How is the burden of proof of the lack of conformity regulated?
The seller is only liable for defects existing at the time of delivery. The legislation distributes the burden of this proof between seller and consumer, based on the moment in which the defects occur.

If the conformity defects appear within 6 months from delivery, it is assumed that they existed also on that date.

It will therefore be up to the seller to prove that the good was fully compliant, ie that the defect complained of by the consumer occurred after delivery.

The seller can exclude the burden of proof against him if he can prove incompatibility with the nature of the good or the nature of the defect.

If the defects become apparent after the 6 months after delivery, the consumer must provide proof that the defect was present at the time of delivery.

In this case the consumer will therefore have to prove:

  • to have bought the good;
  • that the good has a lack of conformity in accordance with the law;
  • that this defect existed at the time of delivery, even though it occurred later;
  • that the forfeiture terms have been respected
  • and prescription.

The distribution of the burden of proof therefore constitutes an incentive for the consumer to verify in depth the conformity of the good and to carry out a prompt dispute of any defects.

18. What is the manufacturer's or seller's standard warranty?
The "conventional guarantee is, according to the definition in the art. 128, "further" than the legal one and consists of "any commitment of the producer or seller hired towards the consumer, without additional costs, to reimburse the price paid, replace, repair, or otherwise intervene on the consumer good, if it does not correspond to the conditions stated in the guarantee declaration or in the related advertising. "

Therefore, while the legal guarantee of the seller is an obligation that derives from the mere fact that a contract of sale has been concluded with the consumer and concerns defects that existed prior to delivery, the conventional guarantee is a voluntary and further act of the subject that engages in the towards the consumer.

The conventional guarantee therefore does not replace, but is added to the legal one.
It follows that:

  • the seller or the producer has the right not to foresee it, but once offered, they remain bound to it;
  • the seller or the manufacturer can establish the content of the conventional guarantee, ie offer the same conditions as the legal guarantee or more favorable or more limited conditions;
  • the consumer's right to the legal guarantee of the seller for any defects not covered by the conventional guarantee remains unaffected.

It is presumable that, in practice, the consumer asserts, where present, the conventional guarantee, if more favorable.

From the definition of "further conventional guarantee", it follows that the methods used are not only those present in the "guarantee declaration", but also those indicated in the "advertising" (commercials, brochures, etc.);

The legislator also establishes that the conventional guarantee ensures certain essential information to consumers:

  • the specification that the consumer is the owner of the rights provided for in the Consumer Code concerning the legal guarantee, on the sale of consumer goods, and that the conventional guarantee does not prejudice these rights;
  • the object of the guarantee, ie what is offered;
  • the elements to make it work;
  • its duration;
  • its territorial extension.

The conventional guarantee must be written in Italian, with characters no less evident than those of other languages, if present.

At the consumer's request, the warranty must be available in writing or on another durable medium.

The requirements set by the legislator are mandatory. However, if they are not present, the conventional guarantee remains valid and the consumer can demand its application.

19. What is the seller's right of recourse?
The guarantee regulation is mainly focused on consumer protection. However, the legislative provisions contain an important provision to safeguard the interests of commercial operators.

It is in fact established that if the lack of conformity depends on an action / omission of the producer, of a previous seller of the same contractual chain or of any other intermediary, the seller may demand from the subject or the responsible subjects, who are part of the aforementioned chain distribution, the reimbursement of expenses incurred to meet consumer demands.

The possibility of acting in recourse is subject to the following conditions:

  • the seller has complied with the remedies requested by the consumer;
  • the seller has not signed any contrary agreement in the contracts with these parties, nor has he waived this right;

To avoid that the times of circulation of the goods on the market, sometimes long, make the responsibility of the supplier fall in prescription, if it is not excluded contractually, the final seller will have time 12 months to act towards the producer from the execution of the service requested by the consumer.

The recognition of the right of recourse avoids that the costs of any defects of the goods are borne exclusively by the seller, ensuring, in principle, an equitable distribution of the business risk along the entire distribution chain. In reality a lot depends on the contractual force often asserted by the producer who imposes "contrary pacts".

20. Are the rights established in favor of the consumer derogable from the discipline on guarantees in consumer goods?
Among the salient aspects of the new legislation is that of the inalienability of the rights recognized to the consumer.

While the guarantee provided for in Articles 1490 and ss. of the Civil Code can be waived contractually, the protection offered by the Consumer Code cannot be reduced by the will of the parties.

In fact, the legislator establishes that any agreement, prior to the communication to the seller of the lack of conformity, aimed at excluding or limiting the rights recognized, even indirectly, must be considered void.

The nullity can be enforced only by the consumer and can be taken automatically by the judge.

Finally, the overall legal framework to protect the consumer is guaranteed by art. 135 which specifies that the recognized protection does not exclude or limit the rights attributed to the consumer by other regulations, such as, for example, that concerning the manufacturer's liability for damage caused by defective products or the possibly more favorable standards provided for by the civil code