The 2019 European Directive modernising and broadening the warranty scheme is gradually finding its way into Belgian law. The new rules should actually have applied long ago. On 1 June 2022, however, the time has finally come. It is therefore time, as an entrepreneur, to check whether your commercial practices are in line with the new rules.
For us, this is also a good opportunity to take a closer look at what a warranty is, who can benefit from it and what the exceptions are. Of course, we will also briefly explain the new features, the most important of which is a full warranty!
The principle of the legal warranty
When a consumerbuys a consumer good from a professional seller, he enjoys the protection of the legal warranty for two years.
Consumer goods are a very broad concept, to which there are only a few exceptions. A consumer good is to this day a movable tangible object. This concept may seem as meaningless to you as the concept of consumer goods. But in fact it is not that complicated. A bicycle, a smartphone, a book, a coffee machine, etc. are all examples. And this regardless of whether you bought the product in a shop or online.
However, from 1 June 2022, the warranty scheme will also apply to digital content and services!
The warranty gives the consumer the right to contact you if there is something wrong with the product he bought from you. This is when the product purchased does not correspond to the product requested.
If you sell a book, but the pages fall out when the buyer flips through it for the first time, then the product is faulty/not in accordance with what your buyer requested. In that case, the consumer can turn to you and invoke his legal warranty.
However, it is a misconception that the warranty can be invoked for all problems with the product. Let us put an end to this misconception immediately. In order to be able to invoke the warranty, the following is required:
- The defect to the product must already exist at the time of delivery and
- The defect must be present at the time of delivery; and
If the product becomes defective after three years, or the defect only arises later because it has been used very intensively and for a long time, the buyer will no longer be able to benefit from the warranty.
In summary, there are thereforethree main elements that must be present for the consumer to be able to make a claim under the legal warranty:
- There must be a lack of conformity; and
- The defect must be present at the time of delivery; and
- The defect must occur within a period of two years after delivery.
Exceptions to the legal warranty
However, a legal rule would not be a rule without ‘exceptions’ to the principle. For example, the legal warranty will not apply when:
- The damage is caused by normal wear and tear;
- You have made changes to the products;
- The damage has been caused by incorrect installation or misuse (in other words that the instructions that came with the product were not followed).
Terms of the legal warranty
Of course, the warranty is not unlimited in time. As a seller, you cannot guarantee the conformity of the products you sell forever. We already touched upon this above: the legal warranty has a term of two years, and this term starts upon delivery of the product. This period will also be retained in the new law.
To be exhaustive, the period for second-hand goods is not necessarily two years. The seller and consumer can agree that the period is shorter. However, they are not completely free in their mutual agreement: the period cannot be shorter than one year.
The presumption of the legal warranty is quadrupled!
In terms of the presumption, however, things are changing. And it is precisely this change in the law that will ensure that there is afull warranty.
Until the amendment of the law, there was a presumption of only six months. What exactly does this presumption mean? If the defect arises within a period of six months from delivery of the product, it is presumed that the defect already existed at the time of delivery.
Since it is a question of a presumption, the seller can, of course, try to demonstrate that this was not the case. He can argue that the product was in perfect condition when delivered. The presumption therefore places the burden of proof on the seller and this for only a short period of six months.
Once the period of presumption was over, the burden of proofturned around and shifted to the consumer. Burden of proof means risk of proof: if you cannot prove it, you have to bear the consequences. However, a consumer usually does not have the technical expertise to provide the required proof. The result is that the legal warranty often remained a dead letter after 6 months.
Although the directive provides for a period of one year, the Belgian legislator has chosen to increase the period of the presumption to two years! This places the burden of proof (and the risk) for the legal warranty on the seller. And that means in practice a fourfold increase in the rights of the consumer/of consumer rights.
Attention! The presumption is still a rebuttable presumption. This means that you, as a seller, can provide proof to the contrary. This can be achieved by demonstrating that:
- the defect was not present at the time of delivery, or
- the presumption is incompatible with the nature of the product concerned.
Think for example of a piece of fruit. The fact that you cannot eat the fruit after four months does not mean that there was a defect at the time of delivery. The presumption is then incompatible with the nature of the product.
What is the impact of that legal warranty?
If all these conditions are met, then the consumer has a right to the legal warranty. But what exactly does this right entail?
Repair or replacement
The warranty covers the repair or replacement of the defective product. Sometimes, however, repair/replacement is not possible or involves disproportionate costs for the seller in comparison with the other remedies.
It is important to emphasize that the repair/replacement must be carried out free of charge!
Price reduction or cancellation
If repair or replacement are not possible, two other remedies are available. These are a proportional price reduction or the cancellation of the sale. In the latter case, the consumer receives a full refund of the price, but must also return the product.
These remedies are in addition to any right to additional compensation.
Raising the alarm in time is essential!
It is important that the buyer notifies the defect in time. The new law clarifies that the parties may agree on a period of time for the reporting obligation, but this may not be shorter than the statutory minimum of 2 months.
So what are the novelties of the legal warranty as of 1 June 2022?
A full 2-year legal warranty
The most important change was the reason for this blog post: the extension of the period of the presumption from 6 months to the full 2 years.
However, the modernisation/extension of the warranty does not only refer to raising the presumption to two years. There are also a number of other proposed changes, some of which we briefly touch on below.
The definition of consumer goods is expanded. In addition to movable tangible objects ,movable tangible objects with digital elements (e.g. a smartwatch) are now also explicitly mentioned.
However, the adjustment of the regulations is much broader. The legal warranty scheme will from now on also apply to the delivery of digital content and digital services. Although it should be noted that in the case of one-time deliveries, the presumption of non-conformity is limited to one year.
When you download music or software, you are dealing with digital content When you use streaming services, you are dealing with digital services.
One last novelty we would like to mention is the right to updates.
For products with digital elements (and for digital content/digital services) a right to updates is provided, namely the updates necessary to preserve the conformity of the goods.
As a seller, you will therefore have to ensure that, for a certain period of time at least, updates are provided that allow the product to be used in a normal way. This is clearly an updating of the regulations in the light of technological developments. Law and technology go hand in hand here.
In addition to the legal warranty, there is also such a thing as a commercial warranty. Whereas the legal warranty stems from the law, the commercial warranty is, as it were, a gesture from the seller or a third party (e.g. the manufacturer of the product).
Do not misunderstand us; this is a gesture that is usually made in return for payment. Moreover, that gesture is not subject to the rules set out above. The conditions are freely determined by the parties. The commercial warranty may stipulate, for example, that the consumer must register on a particular website. The commercial warranty may not affect the legal warranty. The consumer-buyer retains the right to his legal guarantee and the commercial guarantee should be considered as an extra.
|Commercial warranty||Legal warranty|
|Content determined by the agreement||Content provided by law|
|Provided by the seller or third party||Provided by seller|
gedurende een volle termijn van twee jaar. If we are dealing with a sale involving a consumer, a professional seller and a defective product, the legal warranty now applies for a full two-year period.
This fourfold increase ensures that the consumer-buyer is better protected. The downside is that it places a heavier burden on sellers.
As an entrepreneur, you will therefore have to adapt your operational practices in any case. But it is also wise to revise your terms and conditions of sale, so that they are clearly tailored. For a web shop, it is in any case mandatory to point out the legal warranty, which often includes a brief explanation.
Do you want to know whether your current general terms and conditions comply with this forthcoming legislation? Feel free to contact our experts at firstname.lastname@example.org.
Written by Chloë Vanderstraeten, Legal Adviser theJurists, and Kris Seyen, Partner theJurists