The legislator built Consumer Law to be the safety net of the everyday consumer in response to the booming trade and marketing industry. As President Kennedy observed in his Special Message to the Congress on Protecting the Consumer Interest in 1962, the consumer mass represents the most important economic group, but also the one whose needs are the least taken into account.
Even though this branch of law has experienced a very dynamic evolution, it never seems to complete its mission, as commercial law innovates. It must constantly improve and withstand the challenges in order to rebalance the contract field in favour of the ‘weaker party’. This was also the purpose of the European Parliament and the Council on May 25, 1999 when they adopted the Directive 1999/44/EC regarding certain aspects of the sale of consumer goods and associated guarantees. The Directive was enacted by all member states. Without any amendments, Romania acted accordingly adopting Law 449/2003.
But what exactly is this guarantee?
The guarantee for conformity with the contract represents the legal means by which a seller or a producer is liable to the consumer for any lack of correspondence between what the consumer legitimately expected from the product bought and what was actually received.
The premise of its merits is that this guarantee was invented to fill a legislative gap. The main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of goods with the contract. It might look like the buyer can invoke a large range of legal remedies alternatively or separately, if his expectations are not fulfilled. That is why we might find it surprising that there still are some situations when the guarantee for conformity with the contract is the only answer.
Why do we need it?
In order to reveal its genuine feature, a comparative perspective is required. The obligation of conformity with the contract becomes more determinant as the lack of conformity is smaller.
Some simple hypotheses can answer the question better than any doctrinal presentation. Therefore, if you buy a wooden table and you are delivered a couch, there should not be any problems when you ask the seller to change the product or you ask for a refund. It is certain that your contract was not executed. But what if you buy a wooden table and instead you are delivered a metal one? Again, if you specified that your table should be made out of wood and the seller understood or at least should have anticipated this option based on reasonable criteria, you can use the same remedies. You can invoke the non-compliance with the obligation, you can ask for a full price refund or, eventually, ask for the contract to end. Things seem to get a bit more complicated in the next situation. The consumer buys a wooden table, he/she is delivered a wooden table, but the product has a latent defect. For example there is a small termitarium (termite nest) inside the structure of the piece of furniture. It is a defect that could have remained unknown even for the seller himself, and could not have been spotted by a medium diligent consumer. This goes beyond the guarantee, it is a latent defect and the remedies in this case are regulated separately.
It is important to observe that whereas in the first two hypotheses the consumer did not receive the product he had bought, in the last situation, the product apparently is the same with the one the consumer had asked for, but the latent defect makes it unusable, and, therefore, different from the product that the consumer wanted to buy.
The fourth example presents the situation where the guarantee for conformity becomes useful. The table that the consumer buys is perfectly functional but he/she is delivered a wooden table of a different colour than the sample the buyer and the seller had agreed upon. Should the consumer be held to accept this minor non-conformity? What if the colour of the wood is fine but the expensive table he/she has bought for his/her living room has notable scratches on the surface? An aesthetic defect is as important as any other one in the Directive’s view. Since the discussion is about products that are new, it is absolutely reasonable that the consumer’s expectance is to receive flawless products, even if the lack of conformity was minor (Goicovici, 2006). The same analysis applies when the consumer revealed the particular usage he/she wanted to assign to the product and the seller guaranteed for it.
The magnitude of the non-conformity is relevant for justifying the remedy that a consumer can use.
What can the consumer do?
According to Article 3 of the Directive, in the case of a lack of conformity at the moment of the delivery, the consumer is entitled to have the goods brought into conformity free of charge by repair or replacement, or to get an appropriate discount or ask for the contract to be rescinded. These four remedies are not listed in a random order but according to the gravity of their effects on the seller’s patrimony. This criterion is to be applied along with the principle of the most effective remedy from the consumer’s point of view. First, the consumer should agree to have the product repaired or replaced, unless this is impossible or disproportionate, as compared to another remedy. The solution must be applied within a reasonable time and without any significant inconvenience for the consumer. The nature of the goods and the purpose for which the consumer required the goods have to be taken into consideration. If any one of these conditions is not respected, the consumer may require an appropriate reduction in the price or have the contract rescinded. However, the latter remedy does not apply if the lack of conformity is minor. Regarding damages, the Directive remains silent.
A very important aspect regards the time limits in which the consumer must take action. The seller is to be held liable within two years from the delivery date for new products. For second-hand goods, the time limit is one year. Also, the consumer must inform the seller about the lack of conformity within a period of two months from the date on which he detected such a lack of conformity.
In order to favour the consumer, the Directive uses the presumption that the lack of conformity that reveals itself within the first 6 months must have existed at the time of delivery. It is up to the seller to prove that the products delivered are in conformity with the order, or that they are fit for the normal purpose of the product. (Rondey, 2005)
To sum up
1. The product delivered must be identical in terms of quality and quantity with the product bought.
2. A notable difference from the other guarantees is that the seller is held liable for any lack of conformity.
3. We can distinguish between two types of conformity (I.F. Popa, 2006). The material conformity refers to the identity of the product bought which must reveal the same quality, quantity and content as stated in the contract, the law, the commercial customs, or corresponding to a sample. The functional conformity refers to the use that the consumer wants to give to the product, usage that the seller guaranteed for or the product’s labels certified for.
In conclusion, this regulation is more than welcome and definitely provides an extra layer of protection for consumers against abusive sellers/producers who take advantage of any law breach. Besides the fact that its practical input is undoubted, the guarantee’s fairness is sustained by an objective criterion: the consumer’s reasonable expectations legitimated by the law.
