What is the difference between a legal guarantee and a commercial warranty?
Update : Oct 2015
What is a commercial warranty?
In addition to legal guarantees, the seller or producer can – on a voluntary basis – offer a commercial warranty to reimburse the paid price, exchange, repair or handle a product, in the event that the product does not conform to the contract. In any case, if the seller offers a commercial guarantee, the consumer is not deprived of their rights under the legal guarantee.
The Consumer Rights Directive indicates that all contracts should give a reminder of the legal guarantee* when offering a commercial warranty. The seller should specify that, under EU law, he/she is liable for any lack of conformity that becomes apparent within a minimum of 2 years after delivery of the goods and that national laws may give the consumer additional rights. The seller may not present the legal guarantee as a service he/she is offering **.
The French consumer code (article L217-15) imposes an obligation to provide the consumer code provision on the guarantee of conformity and of the civil code on guarantee against hidden defects.
It is also possible for businesses to make goodwill gestures and give additional services: e.g. “if you are not satisfied you can return the items, and be reimbursed”. It is necessary in every case to refer to the general conditions of the sales contract, or to inquire in the shop. If the trader has mentioned anything concerning exchanges or refunds in his advertisements (either in the shop, on the invoice or on any other material) he is bound by it. Otherwise, he is liable for misleading advertising.
“Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context: (…) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;”Article 6.1 (l) and (m) “Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner: (…)a reminder of the existence of a legal guarantee of conformity for goods; (m) where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees”.
Directive 2005/29/EC of 11 May 2005 concerns unfair business-to-consumer commercial practices in the internal market. Annex I of this Directive contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same list applies in all Member States. According to point 10 of the annex the fact of “Presenting rights given to consumers in law as a distinctive feature of the trader's offer” is a misleading commercial practice.