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:
- an approved organisation for the protection of the collective interests of consumers;
- the Ministry of Consumer Protection.
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.
A guarantee of conformity is not required for:
- individuals selling a product in a private capacity (such as their car); or
- professionals who sell products to other professionals (B2B); or
- the sale of intangible movable assets (e.g. shares), immovable assets and assets for auction sale and forced sale; or
- in principle, the provision of electricity, water or gas.
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 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 consumer may agree in writing on a duration of a guarantee period which is less than 2 years (but not less than one year).
The shorter guarantee period can be specified in the general terms and conditions. However, the consumer has to be informed of this case.
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, except where this operation is either impossible or constitutes an excessive burden.
If the professional fails to comply with the request, the customer may:
- ask to be fully reimbursed (provided they return the item);
- request a discount (if they keep 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 suspended:
- in case of ongoing negotiations between the professional and the customer; or
- 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 conformity with the consumer's wishes if:
- the consumer has informed the professional of the special use they wish to make of it;
- 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:
- 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 defects
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 six months of delivery
If a lack of conformity appears within 6 months of the product's delivery, the product is under guarantee 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:
- return the item and ask to be fully reimbursed, unless:
- the professional repairs or exchanges it; or
- the defect is minor;
- keep the item but ask for a discount unless the professional repairs or exchanges the object;
- 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 they prove that they suffered actual damage due to the defect.
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 geographic 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.