Consumer law affords the purchaser a myriad of rights. Likewise, it imposes various obligations on the seller, which need to be satisfied. In the absence of this, the sale will be liable to be rescinded. In simpler terms, this means that the consumer can, in certain scenarios, ‘cancel’ the contract completely.

Under the Consumer Affairs Act, the seller is obliged to deliver the object sold in a manner conformant with the description and specifications in the contract of sale itself. The seller must also ensure that the thing sold is adequate for the intended use of the end consumer, and ensure that the product in question is installed correctly.

If any of these conditions are not met, the seller must provide a remedy to the consumer, one of which is, in fact, the rescission of the contract. For rescission to take place, however, it needs to be proportionate to the ‘flaw’ in the product.

These considerations were at the forefront of the Civil Court, First Hall’s considerations in the judgment in the names of ‘Marco Garaffa v Gasan Enterprises Limited’ (378/2012AF), delivered on June 23. This case concerned the sale of a vehicle with the mark ‘Ford Kuga’ which took place on December 17, 2008. The plaintiff alleged that after the vehicle was delivered to him, huge quantities of water started to percolate from the windscreen and sunroof.

Despite several attempts on the part of the defendant company to remedy this fault, things got progressively worse. The consumer stated that during the repairs, the silicone was applied incorrectly, which resulted in the problem never being solved. It is for this reason that he argued that the rescission of the contract of sale was proportionate. The plaintiff even engaged a technical expert who explained that the water percolation can result in a short circuit and other ancillary damage to the vehicle.

The court explained that the contract of sale and the contract of works give rise to two different and distinct juridical facts

The defendant company disagreed and categorically stated that the car was delivered in a good condition. The company did not contest the fact that the silicone sealer on the passenger’s side of the car was perforated, but it argued that such issue could have been easily resolved without the need of resorting to the court. The defendant company also drew attention to the fact that on June 23, 2009, it had repaired the windscreen of the vehicle following a car accident involving the vehicle in question. It emphasised that it was only after this car accident happened that the water percolation issue surfaced.

The Civil Court, First Hall took all the above into consideration and also analysed the relevant provisions of the Consumer Affairs Act. The court noted that when one alleges that there is a discrepancy between the description and specification of the product and the actual product delivered to the consumer, what is crucial is the state of the product at the time of delivery. Without any reservations, the court noted that the plaintiff himself does not contest that at the moment of delivery, all was well. The court also noted the car accident which took place, and that it was only after repairs were affected following such accident, that the plaintiff started encountering problems.

The court observed that when the plaintiff took the vehicle for repair to the defendant company following the car accident, a contract of works was created. It added that it was because the works by the defendant company were not executed according to good craftsmanship (mhux skont is-sengħa u l-arti), that the plaintiff’s vehicle encountered water percolation.

The court stated that this issue is separate and distinct from the sale of the vehicle, which took place months before the incident occurred. It explained that the contract of sale and the contract of works (appalt) give rise to two different and distinct juridical facts, and the plaintiff cannot use the action for the rescission of sale to enforce a remedy that should have been sought on the basis of the contract of works.

The court held that the appropriate action in such case would have been to sue the defendant on the basis of the contract of works, and not the contract of sale, and concluded that the provisions cited by the plaintiff from the Consumer Affairs Act were not applicable to the case in question. The court rejected the claims brought by the plaintiff in their entirety.

This judgment is still open to appeal.

Keith Borg is a partner at Azzopardi, Borg and Associates Advocates.