Ann Bugeja and Nicole Attard of CSB Advocates in Swatar look at consumer rights
When purchasing a product in terms of the Maltese Consumer Affairs Act, consumers have clear-cut legal rights. The warranty provided by the supplier or the manufacturer cannot curtail or negatively affect the consumer’s rights. Accordingly, the Act bestows upon the suppliers of goods certain obligations to safeguard the consumer’s rights. Thus the supplier must provide goods that: complement the descriptions and specifications in the contract of sale; are fit for their intended purpose; fit for the particular purpose for which the consumer requires them; and show quality and performance typical in goods of the same type. The consumers hold the right to claim a remedy when the latter criteria are not fulfilled with regards to their purchased product. Thus, if the product purchased is not in conformity with the latter criteria, the consumer has a right to claim a suitable remedy.
Upon purchasing a product from a shop, the consumer is protected by a two-year time frame within which the consumer has the right to an effective remedy when the product purchased has a manufacturing fault or is not in conformity with the contract of sale. Furthermore, the Consumer Affairs Act does not provide for defects caused by misuse or by normal wear and tear, thus if the product has not been affected with the latter defects, the consumer is free to reach out for a suitable remedy; the product may be repaired or replaced for free. There will also be instances where a refund or rescinding the contract might be suitable, when repairing or replacing the product in question is futile.
In fact in the recent case of Claire Portelli v. Vodafone Malta Limited the applicant had purchased a mobile phone from the defendant which had developed faults and was no longer functioning. The defendant had replaced the mobile phone twice however the same faults were occurring repeatedly. The defendant held that the mobile phones were not damaged however their low memory capacity might have been causing these faults.
The Consumer Claims Tribunal held that the mobile phone was indeed defective, and even though the defendant had replaced the mobile phone twice, the applicant was still encountering difficulties with her mobile phone. As a result the Tribunal accepted the applicant’s claim and ordered the defendant to pay €250 and also ordered that after the payment is effected the mobile phone is to be considered as property of the defendant.
Additionally in Angie Bugeja nee’ Attard v. Joe Ghiller – Telephone Box, the applicant had purchased a mobile phone from the defendant which had developed certain defects within a month from the date of purchase. The mobile phone was switching off automatically, freezing and the camera was defective. The applicant went to the defendant’s shop and the mobile phone was given a format. However, after a week, the mobile phone was not working properly and the applicant went back to the shop and this time the defendant replaced the software, nonetheless the mobile phone was still not working properly. The applicant asked the defendant for a new mobile phone, however he refused and instead he wanted to send the mobile phone overseas.
Naturally, on the basis of the foregoing considerations, the Consumer Claims Tribunal held that the defendant is bound to provide the applicant with a new mobile phone of the same type and model.
When a consumer is not satisfied with regards to his purchase of a good or service, the consumer should firstly forward his complaints to the trader either in person, in writing or over the phone and attempt to reach an agreement with the trader before registering a complaint with the Malta Competition and Consumer Affairs Authority (MCCAA). If the consumer is not satisfied with the trader’s reply, the next step would be to register a complaint with the MCCAA which should include all the necessary facts of the case and the relevant documentation. The case is then processed accordingly and if the consumer’s claim is legitimate the complaint handler within the MCCAA will inform the trader and would try and reach an amicable agreement.
If a solution is not reached, the consumer might want to either retract the complaint or else submit a claim before the Consumer Claims Tribunal. The Tribunal has the jurisdiction to hear and determine claims where the value of the claim does not exceed €3,500 and in this respect the consumer would have to fill in the ‘Notice of Claim’ form and submit it to the Consumer Claims Tribunal’s Registry. In turn, the trader will be informed of the claim filled with the Consumer Claims Tribunal and will have the opportunity to reply to the claim and also has the option to file a counter claim against the consumer. The consumer will have the opportunity to present the case before the arbiter and as result the arbiter after reaching his or her conclusion would be able to present the resultant decision.
Both the consumer and the trader have a right to appeal from the decision of the Tribunal to the Court of Appeal within the time span of 20 days from the date of the decision. An application would be validly constituted if it concerns matters relating to prescription; where the arbiter has acted contrary to the rules of natural justice; and when matters arise with respect to the jurisdiction of the Tribunal. After the lapse of 20 days the consumer has the option to ask the trader to honour his obligations and conform to the Tribunal’s decision. Nevertheless, if the trader decides to brush off the Tribunal’s decision, the best next step for the consumer would be to seek professional legal advice.
Offering reasonable remedies to the consumer is linked to the growing purchasing options which the consumer has when considering the flourishing economic resources. The consumer’s options consequently have become more intricate and challenging to assess for the consumer. The goods offered are diverse and continuously changing and evolving. In other words, the growing choices in conjunction with the inadequate tools for making these choices demands for uniform legal regulation and suitable remedies.
For further information about how CSB Advocates can help you with your consumer law enquiries kindly contact us on firstname.lastname@example.org