Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, by not later than 30 days from the conclusion of the contract.
Where the trader has failed to fulfil his obligation to deliver the goods at the time agreed upon with the consumer or within the 30-day time limit, the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that additional period of time, the consumer shall be entitled to terminate the contract.
However, where the trader has refused to deliver the goods or where delivery within the agreed delivery period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the trader, prior to the conclusion of the contract, that delivery by or on a specified date is essential, the consumer shall be entitled to terminate the contract immediately.
Therefore, when the goods or services ordered are unavailable the supplier must immediately inform the consumer. Upon termination of the contract, the trader shall, without undue delay, reimburse all sums paid under the contract.
A consumer may choose to return a product for two reasons:
1) *the good is defective or does not conform with the contract of sale OR
2) change of mind.
* Defective Goods or Non-Conformity with the Contract
The goods bought should always be as described by the trader, fit for purpose and must also show the quality and performance which are normal in goods of the same type.
The Right to Redress
If this is not the case, under the Consumer Affairs Act, the consumer is entitled to a two year legal warranty and may ask for a free of charge remedy. The remedies provided by law are: repair, replacement or refund.
Consumers would not be entitled for these remedies, however, if the defect in the product is the result of some kind of misuse. During the first 6 months, if the product is defective, it will be considered as a latent defect, unless the trader does not prove otherwise.
When a good develops a fault, the trader has the right to first choose to repair the product free of charge. The repair, however, should be carried out within a reasonable period of time and without causing any significant inconvenience to the consumer. The period of the guarantee will be suspended until the product is repaired and given back to the consumer. The suspended time shall then be added with the guarantee.
Replacement of defective or non-conforming goods can be chosen if the product cannot be repaired or if the repair would cause significant inconvenience to the consumer. When a product is replaced, the two year legal guarantee does not start over again with the replaced product, but will continue from the original date of purchase.
Part or full refund
A part or full refund of the money paid for the product may be claimed when repair or replacement of the product are either not possible or if opted for may cause a significant inconvenience to consumers. One is not entitled to request a full refund when the lack of conformity is only minor or insignificant or when the product has been used for quite some time.
While the legal guarantee is a statutory right that entitles consumers to seek redress from the seller if a product is defective or does not conform with the contract of sale, a commercial guarantee is a guarantee that a trader may offer consumers over and above the protection established at law, granting the consumer the right for reimbursement, replacement or repair if the goods fail to conform to the contract.
While the time frame of the legal guarantee is fixed at two years, the length of a commercial guarantee may vary. This means the duration of the commercial guarantee can be less than two years. Notwithstanding this however, consumers’ legal rights are not diminished. This is because commercial guarantees can only provide more benefits to consumers, and if any of their terms and conditions diminish these benefits, they are not legally binding.
While a legal guarantee provides consumers with a choice of three remedies, one of these being the right to cancel the contract of sale and request a refund if repair or replacement are not viable solutions, a commercial guarantee may not give the option of a refund.
However, if the two-year legal guarantee is still valid, consumers may request a refund if it would cause them significant inconvenience to repair or replace the product. This applies regardless whether the terms and conditions of the commercial guarantee state otherwise.
Once the two-year legal protection expires, then the terms and conditions of the commercial guarantee strictly apply.
Furthermore, while the legal guarantee automatically applies when consumers purchase goods from sellers and the only documentation required is the proof of purchase, the Consumer Affairs Actrequires a commercial guarantee to be provided ‘in written form in a clear and legible manner, in plain language…’, in English or Maltese and it shall set out the following:
(1) the name and address of the guarantor, and the permanent address of the place of trade or business and the name of the person who is supplying the consumer with the commercial guarantee;
(2) the contents of the guarantee including its territorial scope if this is limited as well as the duration of the guarantee from the date of purchase and different periods may be stipulated for different components of any goods;
(3) the manner how a consumer is to proceed to make a claim and to obtain execution of the commercial guarantee, the person authorised to execute the commercial guarantee and an address in Malta where claims may be sent;
(4) whether the commercial guarantee may be transferred to others. Unless the commercial guarantee specifically states otherwise, the commercial guarantee may also be availed of by any subsequent owners of the goods to which it refers and that in the case of goods, the commercial guarantee covers any defects that may result during the period of guarantee;
(5) a clear description of the goods or services covered under the commercial guarantee;
(6) what the guarantor undertakes to do if there is a defect in the goods covered by the commercial guarantee or if the services covered by the guarantee are not properly carried out; and
(7) that the consumer enjoys certain rights at law in relation to the sale of goods to consumers and that those rights are not adversely affected by the guarantee.
Where a commercial guarantee does not comply with the requirements set out above, the validity of the guarantee shall not be affected and the consumer shall remain entitled to claim under it and require that it be honoured.
At the request of the consumer, the trader shall make available to the consumer the commercial guarantee in writing or in another durable medium accessible and available to the consumer.
Even though commercial guarantees are given out voluntarily by traders, once given they become legally binding on traders. Furthermore, consumer legislation states that a commercial guarantee is also binding on the trader if it is mentioned in a statement or advertisement, even if the commercial guarantee is not specifically mentioned in the contract of sale.
2) Change of mind
Change of mind situations or wrong buying decisions are not protected by law. This means that traders are not legally obliged to offer consumers a remedy in such situations.
Most retailers, however, do have certain return policies that would allow consumers to exchange unwanted items. In fact, it is the consumers’ responsibility to ask about shops’ return policies before concluding a purchase.
In such situations, traders may offer one of the following solutions:
1.Exchange of goods
The right to information
Before concluding the sales transaction, Directive 2011/83/EU and the ConsumerAffairs Actrequire traders to provide consumers with the following information in at least one of the official languages of Malta:
Right of withdrawal
Directive 2011/83/EU provides consumers with the right to withdraw from distance contracts within 14 days from the delivery of the purchased goods or conclusion of the service contract, without giving any reason or incurring any cost. The only cost consumers may incur if they decide to exercise their right of withdrawal is the cost of returning the goods to the seller such as shipping costs. However, consumers must be clearly informed about these costs, otherwise they must be paid by the trader.
If the consumer is not made aware of these rights by the trader, the withdrawal period is extended by 12 months. Once information on the right of withdrawal is provided to the consumer, the cancellation period will expire 14 days after the day when the consumer receives that information.
When the right of withdrawal is exercised, the trader is obliged to reimburse consumers within 14 days from the day the trader is informed of the consumer’s decision to cancel the sale.
Unless the trader has offered to collect the goods, he may withhold payment until he has received the goods back or until the consumer has supplied evidence of having sent them back.
For this purpose, the consumer may either:
(a) use the model withdrawal form provided by Directive 2011/83/EU attached hereunder or
(b) make any other unequivocal statement setting out his decision to withdraw from the contract.
Model withdrawal form (as per Annex I(B) of the Directive 2011/83/EU)
- To [here the trader’s name, geographical address and, where available, his fax number and e-mail address are to be inserted by the trader]:
- Name of consumer(s),
- Address of consumer(s),
- Signature of consumer(s) (only if this form is notified on paper),
Exceptions to the right of withdrawal: