Guarantees
Guarantees for goods
The Code of Consumption distinguishes between two types of guarantees, which are independent from each other:
- the legal guarantee of conformity, and
- the commercial guarantee.
The legal guarantee of conformity
Only the legal guarantee of conformity is a legal obligation.
The retailer must provide goods that are in conformity with the contract and that present the features of durability, functionality, compatibility and security that are usual for these goods and which consumers can reasonably expect to find.
The legal guarantee of conformity is valid for a period of 2 years from the delivery of the good. It applies to defects that exist at the time of delivery.
If a lack of conformity becomes apparent within 12 months after the delivery of the good, there is a presumption that the defect existed at that time, unless proven otherwise by the professional.
If a lack of conformity becomes apparent after more than 12 months after the delivery of the good but before the 2-year period is over, the legal guarantee of conformity still applies, but for it to apply it is up to the consumer to prove that the defect existed at the time of the delivery of the good.
Upon lack of conformity, consumers have several options:
- repair of the good to remedy the lack of conformity or replacement free of charge without major inconvenience to the consumer and within a reasonable time, or
- termination of the contract provided the defect is not minimal or a proportional price reduction.
The commercial guarantee
The retailer or the producer (i.e. the guarantor) may also offer a commercial guarantee.
It is optional and may either be free of charge or subject to payment.
The guarantor freely decides on the contents and conditions of this guarantee (e.g. additional years of warranty or complementary (maintenance) services).
This guarantee must be in writing on a durable medium in German or French, at the choice of the consumer.
Guarantees for digital contents and digital services
The legal guarantee of conformity also applies to digital contents and services, such as purchased apps, e-books, online videogames, streaming service subscriptions, online film rentals, etc. Some healthcare services as well as gambling for money and financial services are not covered by the legal guarantee of conformity.
Professionals remain liable to consumers for any lack of conformity that:
- exists at the time of the delivery of the goods (i.e. the supply of the digital contents or services), and
- appear within two years of that time, including for digital contents and services. In the case of a continuous supply, for instance in the case of a subscription, the guarantee shall apply for the duration of the contract.
As is the case for other goods, where a lack of conformity becomes apparent within the first 12 months after the supply of the digital content or service, the guarantee works the consumer’s favour, as there is a presumption that the defect existed at the time of supply. The digital contents or services must comply with the stipulations of the contract and meet the various conformity requirements.
Objective conformity requirements include:
- conformity with the description, quantity, and quality stated in the contract,
- functionality, compatibility and presence of all the features listed in the contract,
- fitness for a specific purpose,
- supply of all accessories and instructions, including those pertaining to installations and updates.
Subjective conformity requirements include:
- fitness for the intended use, as expected of digital contents or services of that type,
- conformity with the demo versions or the general descriptions of the digital contents or services provided to consumers prior to the conclusion of the contract,
- information about the updates necessary to maintain the conformity of the digital contents or services in question.
Professionals (suppliers) must:
- inform consumers about the availability of updates, and
- provide such updates so that the “smart” or “connected” goods, or digital contents or services in question remain compliant.
Note: Consumers must install the updates provided in order to be able to enforce the legal guarantee of conformity with professionals.
Remedies: Upon a lack of conformity, either consumers are entitled to having the digital contents or services brought to conformity or to a proportionate price reduction or to termination of the contract.
New specific rights for digital products are:
- Consumers may refuse changes to the digital products purchased that go beyond what is provided for in the contracts and is necessary to ensure the conformity of the goods in question (i.e. security, maintenance, etc.). They may request the termination of the contract if the modifications have a significant negative impact on their access to the digital contents or services.
- Consumers may retrieve their contents in the event of a contract termination.
