This memo focuses on the analysis of the different systems of remedies granted to the consumer in the event of the purchase of any consumer goods that do not comply with the sales contract.

The legislator has provided such protections for the consumer pursuant to Article 128 et seq. of the Consumer Code, implementing Directive 1999/44/EC approved by the European Parliament in the context of "aspects of the sale and guarantees of consumer goods".

The Consumer Code provides, pursuant to Article 130, that “The seller is responsible towards the consumer for any lack of conformity existing at the time of delivery of the goods” and, pursuant to Article 132, for “the term of two years from delivery of the goods”.

It should be emphasized that the legislation governed by the Consumer Code (hereinafter referred to as the “Consumer Code”) is mandatory, therefore any agreement contrary to what has been adopted by the Italian legislator is null and void, save for any derogation. in mejus.

The protection offered by the European and national legislator concerns any consumer goods sold between the consumer and the seller, regardless of the method and manner with which the purchase was completed; therefore, online purchases, purchases via teleshopping or so-called "door-to-door" purchases are included.

The first consideration to be highlighted regarding the origin of the right of guarantee on consumer goods concerns the moment of delivery of the goods, that is, the moment in which the right referred to in articles 128 et seq. of the Consumer Code arises.

By delivery of the goods we mean the actual availability of the goods that are the object of the sale to the consumer, and this coincides with the transfer of possession of the goods from the seller to the buyer. In fact, the two-year warranty terms start from the moment in which the consumer can verify that the goods purchased by him are compliant with the contract.

We recommend that you always keep your purchase receipt and the shipping and delivery confirmation documents for the product.

The concept of conformity to the contract, in the discipline concerning the sale of consumer goods, can be translated in the following way: i) suitability for normal use, ii) suitability for particular use; iii) conformity to the description given by the seller or manufacturer; iv) quality of the good corresponding to the sample or model presented; v) quality and performance usual for a good of the same type.

The consumer has the right to exercise, therefore, the remedial protections governed by the Consumer Code in the event that the forms of conformity listed above are not respected.

What does the Consumer Code provide regarding the protection available in the event of lack of conformity of consumer goods?

The system of remedies focuses on restoring conformity through different solutions that the legislator alternatively grants to the consumer: the replacement or repair of the goods. These operations must be granted free of charge, and all the expenses necessary to remedy the damage suffered by the consumer must therefore be entirely borne by the seller.

In fact, the person liable towards the consumer is the direct seller, who will subsequently have the possibility of taking action through a recourse action against the manufacturer.

It is emphasized, in this regard, that the guarantee cannot be granted by the seller only in the cases of

(i) objectively impossible remedial performance or

(ii) of excessive cost for the same to "remedy" the non-conformity of the product.

Pursuant to Article 1453 of the Italian Civil Code, failure to fulfill a contractual obligation entails the possibility of filing a claim for termination of the contract before the competent authority, and may also request compensation for damages. The termination therefore determines the return of the price paid, the return of the purchased good or the extinction of the obligations still unfulfilled; pursuant to Article 130, paragraph 7, this solution, together with the request for a price reduction, is permitted exclusively in the event that the repair and/or replacement are excessively expensive, the seller has not carried out the repair and/or replacement within a reasonable time or the previous replacement or repair has caused significant inconvenience.

In the field of the sale of consumer goods, pursuant to Article 130 of the Consumer Code, the legislator has put the aforementioned remedies on the back burner, in fact allowing the consumer to eliminate the defect of the product through alternative systems such as repair or replacement of the purchased good.

Article 130, paragraph 5, of the Consumer Code also provides that such remedial solutions “must be carried out within a reasonable time from the request and must not cause significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer purchased the goods”

As already mentioned initially, the deadline for experiencing the alternatives granted by the legislator is two years from the day of delivery of the product regardless of the type of goods purchased. (In this regard, it is worth noting that even so-called “durable” goods are subject to the two-year warranty period). However, the legislator has limited the reporting period for the consumer; in fact, the latter has the burden of reporting the defects within two months of discovering the defects, under penalty of forfeiture of the remedial systems referred to in Article 130 of the Consumer Code.

In order to obtain the aforementioned remedies, the consumer has the burden of demonstrating (i) the actual defect of the consumer good, (ii) that such defect existed at the time of delivery of the good (burden not necessary if the defects appear within six months), (iii) that it became apparent within two years from the day of delivery, and finally (iv) that the good was purchased from the same person who is asked to repair or replace the defective product.

In this regard, the legislator has not provided for particular forms of reporting defects to the seller, leaving the consumer free to choose the most effective method to obtain the remedial systems.. (In this sense, the Court of Cassation also confirmed with sentence no. 2000/6324 that "the report of defects in the item sold does not necessarily have to consist of a detailed description of the defects (...) since a generic report may be suitable for the purpose (...)")

If the lack of conformity is not found and confirmed by the Assistance Center, Casabonaria.com will communicate the estimate of the Assistance Center to the customer, who can decide whether or not to carry out the repair at his own expense. In this case, any transport costs and diagnosis of the defect requested will be borne by the Customer.