Sale to consumers - guarantee of conformity

This page was last modified on 11-12-2012

Professionals must offer consumers a 2-year guarantee that the products sold are in conformity with the sales contract. The guarantee must also cover products against hidden defects.

Professionals may offer extended 'commercial guarantees' to consumers.

Consumers who claim to have been wronged by a professional because of non-conformity may turn to:

If collective consumer interests are at stake, these bodies may take the seller to court.

Who is concerned

All professionals selling tangible movable assets (car, household appliances, shoes, furniture, etc.) to consumers must guarantee that the products sold are in conformity with the sales contract.

Guarantee of conformity is not compulsory:

  • for private individuals who sell a product in a personal capacity (e.g.: their car);
  • for professionals who sell products to other professionals (B2B);
  • for the sale of intangible movable assets (e.g.: shares), immovable assets and for auction sale and forced sale;
  • in principle, for the provision of electricity, water or gas.

Prerequisites

Before selling a product, professionals must inform the consumer of its essential characteristics.

This information must be clear and intelligible, even in advertisement (including advertisement that is not made by the professional).

Duration and deadlines

Duration of the guarantee of conformity

The professional must guarantee the conformity of the product for 2 years.

However, in the case of second-hand products (except cars that are less than one year old), the professional and the customer may agree in writing on a duration of a guarantee which is shorter than 2 years (but not less than one year). The buyer will put, in writing and countersigned, on the contract:

  • the duration of the reduced guarantee (a minimum of one year guarantee is compulsory);
  • and state in writing that this reduction of the duration of the guarantee was negotiated on an individual basis.

Deadlines of withdrawal for the consumer

The consumer must notify a lack of conformity within 2 years of delivery.

If a defect appears 2 years and one day after delivery, the object is no longer under guarantee.

Deadlines for repair or exchange by the professional

If the customer requests the repair or the exchange of the object, the professional must comply within one month of the request.

Failing that, the customer may request full reimbursement (if he returns the item) or a price reduction (if he keeps the item).

Deadline for filing a lawsuit

If the professional and the customer are unable to settle their dispute amicably, the customer may file a complaint against the professional within 2 years of referral of the problem.

The deadline is interrupted:

  • in case of ongoing negotiations between the professional and the customer;
  • if the case of has been brought to court or is under investigation with regard to the defect.

A new one-year deadline for bringing the case to court starts running if the negotiation talks were stopped by the professional or if the investigation is closed.

Exception: if at the end of the 2-year deadline for bringing the case to court, the customer has not yet paid the object for which he regularly reported the defect and where the professional continues to request payment, the customer may still request a price reduction or a compensation payment for damages caused.

How to proceed

Products in conformity with the sales contract

To be in conformity with the sales contract upon delivery, products must:

  • meet the characteristics stated in the sales contract, the invoice, the purchase order, the product information sheet, etc;
  • match the description and have the qualities brought forward by the professional;
  • be usable:
    • either in the usual way such objects are to be used;
    • or in a special way in accordance with the consumer's wishes provided the consumer has informed the professional of the specific use he intends to make of it and that the professional has not expressed any reservations;
  • have the qualities a consumer can reasonably expect from such an item based on the statements made on the label or in advertising.

Professionals are also responsible for lack of conformity resulting from:

  • packaging;
  • assembly instructions;
  • installation, provided it is carried out under their responsibility.

However, they are not responsible for defects affecting materials provided by the customer (e.g.: custom-made products from materials provided by the buyer).

It is advisable to write down all the characteristics of the object, including potential reservations made by the professional against a special use that the buyer intends to make of the product.

Products sold with a defect

No clause can restrict or exclude the responsibility of the professional for a lack of conformity.

However, if the consumer knowingly purchases a defective product, the professional cannot be held liable for said defect.

In this case, the defect must be described in the sales contract signed by the buyer (it is not sufficient to mention that the product has a defect).

Lack of conformity within 6 months of delivery

If a lack of conformity appears within 6 months of the product's delivery, the product is guaranteed for it is presumed to have been defective at the time of delivery.

The buyer must simply report the defect to the professional (by telephone, fax, email, registered letter, etc.).

The product is not covered if the defect is a result of misuse by the buyer. In this case, it is up to the professional to prove the origin of the defect.

Lack of conformity between the 6th and the 24th month from the time of delivery

If a lack of conformity appears between the 6th and the 24th month of the product's delivery, the product is guaranteed if the defect existed at the time of delivery.

In this case, the buyer must prove that the defect already existed at the time of delivery. In general, proof is provided through an expert assessment, carried out at the buyer's own cost.

Extent of the guarantee of conformity

If the products are not in conformity with the sales contract at the time of delivery, the buyer can:

  • give the item back and ask to be fully reimbursed, unless:
    • the professional repairs or exchanges it;
    • or the lack of conformity is minor;
  • keep the object in exchange of a price reduction, unless:
    • the professional repairs or exchanges it;
  • demand that the object be repaired or exchanged (the consumer has the choice as long as it does not constitute an excessive burden for the professional), unless:
    • it is impossible to repair or exchange it;
    • or if it involves excessively high costs for the professional.

The consumer can also ask the professional for compensation if he proves that he suffered actual damage due to the lack of conformity.

Optional commercial guarantee

All professionals are free to grant their customers a commercial warranty which is more favourable to the consumer than the legal guarantee (guarantee of conformity).

The commercial warranty is an extension of the guarantee beyond the mandatory 2 years, which exempts the consumer from having to prove the existence of the defect at the time of delivery in order to be granted repair, refund, replacement, etc.

This guarantee must be given to the customer in writing (or any other durable medium) in German or French (at the customer's choice). It must clearly state:

  • its content (freely determined by the professional);
  • the essential elements for its implementation, including:
    • its duration;
    • its territorial scope;
    • and the address of the person granting the guarantee;
  • the duration of the legal guarantee (i.e. 2 years);
  • and the fact that the guarantee of conformity and the guarantee against hidden defects are still applicable.