The provisions of the new Sale of Goods Directive lays down a common set of rules across all EU member states on the right of consumers for goods to be in conformity with the contract of sale, and the right for specific remedies when the goods supplied are not as per sales contract. These rules also explain how the remedies should be applied in case of lack of conformity.
The new rules came into effect on January 1, 2022 and apply to all sales contracts concluded between consumers and traders after this date. For contracts concluded before this date, the provisions of the former Sale of Goods Directive will continue to apply.
An important change brought about by the recent rules is the inclusion of goods with digital elements within the definition of goods. Thus, any tangible movable items that incorporate or are interconnected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their function, are now also legally covered.
This essentially means that when consumers purchase smart products, their right for remedy would equally apply whether the defect in the product originates from its physical or digital elements.
This directive also includes a new definition concerning the durability of the supplied products. This definition refers to the ability of the goods to maintain their required functions and performance through normal use. If not, then the product may be considered as non-conforming to the sales contract, which would subsequently entitle the consumer the right to claim a free remedy from the seller.
Clearer rules on conformity
The latest Sale of Goods Directive provides both subjective and objective criteria for assessing conformity with the sales contract. The subjective requirements specify that the goods supplied are:
• of the description, type, quantity and quality, and possess the functionality, compatibility, interoperability and other features as required by the sales contract;
• fit for any particular purpose for which the consumer requires them and made known to the seller before the sale was concluded;
• delivered with all accessories and instructions, including on installation, as stipulated in the sales contract;
• supplied with updates as stipulated by the sales contract.
With regard to the objective requirements, the new rules stipulate that the supplied goods must:
• be fit for the purposes for which goods of the same type would normally be used;
• where applicable, be of the quality and correspond to the description of a sample or model that the seller made available to the consumer before the conclusion of the contract;
• be of the quantity and possess the qualities and other features normal for goods of the same type and taking into account any public statement made by or on behalf of the seller.
The new rules no longer require consumers to notify the trader through a judicial act or registered letter within the prescribed periods- Odette Vella
Remedies
In case of lack of conformity, consumers are entitled to have the goods brought into conformity through repair or replacement free of charge. The rules specify that these remedies must be provided within a reasonable time and without causing any significant inconvenience to consumers, taking into account the nature of the goods and the purpose for which the consumers required the goods.
The other remedies available to consumers are an appropriate reduction in the price or termination of the sales contract. The new rules also provide a detailed description of situations that give consumers the right to terminate the sales contract.
The list includes situations where the seller has not fulfilled his obligations to repair or replace the non-conforming product and also to situations where the product has a severe defect or where a non-conformity reappears after repair or replacement attempts. The consumer, however, is not entitled to terminate the contract of sale in case of minor defects.
Liabilities
The liability of the seller in case of non-conforming goods remained the same, namely two years. For goods with digital elements that involve a continuous supply for more than two years, the liability period is the same as the supply period.
Concerning the burden of proof, if the lack of conformity becomes apparent within one year from when the goods were delivered, the non-conformity shall be presumed to have existed at the time of delivery, unless proved otherwise by the trader.
This is another improvement on the previous directive which stipulated a six-month period as to the burden of proof. In case of goods with digital elements which involve a continuous supply of digital content or digital services, the burden of proof shall be on the seller within this period of time.
Obligation to notify
Consumers are obliged to inform sellers of any lack of conformity within two months of the date when they detect the problem. However, the new rules no longer require consumers to notify the trader through a judicial act or registered letter within the prescribed periods.
Thus, consumers can choose the method they prefer. It is, however, important that they have proof of such notification as they may require it should the dispute escalate.
For further information, consumers and traders may contact the MCCAA either by using the ‘contact us’ form on the authority’s website or by calling 2395 2000.
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