The law presumes that every person is capable of entering into any agreement as long as this does not go against the law. However, the law, particularly the Consumer Affairs Act provides a number of minimum safeguards, some of which cannot be derogated from in consumer – trader agreements. Such safeguards include the rendering of unfair contract terms ineffective with regard to consumers. Unfair contract terms may include a limit on the liability of the trader in cases of fraud or gross negligence, the establishment of an unreasonably short period for notifying the trader of any defects and excluding or limiting the legal rights of a consumer.
A number of products of certain value usually come with a commercial guarantee, however, a consumer who purchases a new product without being given a commercial guarantee still benefits from the rights at law or what is known as the legal guarantee.
Commercial guarantees shall not in any way directly or indirectly, exclude or limit the rights of a consumer at law and any exclusion or limitation of such rights shall be null and ineffective. The legal guarantee is of two years from date of purchase, or such later date indicated by the trader.
Traders, including retailer, from whom a product is bought shall ensure that any product sold complies with the description given by him and that the products possess the characteristics, features, and qualities the trader has promised or has shown to the consumer as a sample or model.
The product must be fit for the particular purpose for which the consumer requires them and which he made known to the trader at the time of conclusion of the contract or for the purpose for which goods of the same type are normally used. In other words, the product must show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect.
The consumer is entitled to a remedy if the product lacks conformity with the above mentioned criteria and the remedy can be repair or replacement of the product at the discretion of the trader. If repair or replacement is not possible, the consumer is entitled to refund or appropriate reduction in the price, depending on the significance of the lack of conformity.
The consumer must inform the trader with such a lack of conformity within 2 months from when these are detected. If the trader does not cooperate, notification should be made in writing and sent either by registered mail or by a judicial act. Agreements regarding the lack of conformity between the trader and the consumer may only be entered after the trader is informed with the lack of conformity. Any agreement with regards to lack of conformity entered into before the lack of conformity is detected, shall not bind the consumer.
Any guarantee, whether legal or commercial, shall be suspended for the time when negotiations are ongoing with the trader or when the thing is being repaired. If the object or part of it is replaced, the guarantee does not commence afresh on the new replacement but continues from where the original guarantee was suspended.
The consumer is also protected when the object purchased is defective and does not provide the safety that the consumer is entitled to expect and which is provided by models of the same type, through this warranty the consumer is entitled to recover damages caused by death or personal injury and even moral damages of up to five hundred euros. In such cases, however, the responsible person is the producer and the supplier shall only be responsible for such damages if the identity of the producer or importer cannot be identified and the supplier fails to give such information to the consumer within 30 days. This right of action for damages shall lapse after three years commencing from the day when the consumer became aware, or should reasonably have become aware of the damage, the defect and the identity of the producer. If the consideration relating to the damage is not determinate, any litigation has to be filed before the First Hall of the Civil Court.
The Consumer Claims Tribunal determines consumer claims not exceeding three thousand four hundred ninety-four euros (€3,494), however, this Tribunal does not have exclusive jurisdiction on the matter and such claims may also be filed in front of the Small Claims Tribunal as long as the case is filed only before one tribunal. Claims exceeding the said amount are to be filed before the Small Claims Tribunal if they do not exceed five thousand euros (€5,000), before the Court of Magistrates if they do not exceed fifteen thousand euros (€15,000) or before the First Hall of the Civil Court if they exceed €15,000 euros or the amount is not determined. The Consumer Claims Tribunal operates on the basis of justice and equity and can also award moral damages up to five hundred euros (€500). Decisions of the Consumer Claims Tribunal are subject to appeal in front of the Court of Appeal in a limited number of circumstances.
This shall not be construed to be advice but shall merely serve as a brief description of consumer’s protection and rights.If you would like to get to know more about this, please do not hesitate to contact us on [email protected].