About the law: How conformity protects consumers

POSTED: 06/22/16 9:07 PM

By Cor Merx, attorney at law

Last week was about the refurbished products and their warranty. Today we will talk about the situation where you purchase a TV (refurbished or not) and what could happen if it is broken. Meaning: it does not work anymore in a proper way.

This is going to be a little difficult to understand. That is why I will approach this issue slowly.

Conformity” is a rule in the civil law especially to protect the rights of the consumer (for you!). It means: if you do not have a warranty anymore there is still a possibility to claim the money back.

What does conformity mean? That a product (the one that you bought) is not in “conformity” with the contract if it does not have the characteristics which the buyer was entitled to expect under the contract.

This is a legal statement and needs some explication with an example.

Say I buy a car for, let’s say $20,000 and after 3 years I get a serious problem with the joints of the front wheels. The seller (dealer) will tell you that your warranty is over and that he does not feel responsible anymore for the vehicle although it was serviced all the time by the seller (dealer). Here we have a situation. No warranty but a broken car. How to solve this?

Yes the seller is right when he says the warranty is over but please be aware, after considering the previous articles in this chronicle, the seller (dealer) will always refer you to the manufacturer. Most of the contracts that you signed state that the manufacturer is giving the warranty. But, as I – also – told you before, you have no relations with the manufacturer. Most of the time you even do not know in what country the car or TV is produced (for cars it could be Mexico or Brazil and for the TV it could be China or Taiwan). If the seller would be right in his opinion you would have to find the manufacturer. This is going too far, also for the lawmakers, and according to the Supreme Court jurisprudence.

There is another aspect in the favor of the consumer. The law states explicitly: if a person, before the actual seller pronounced something about the qualities or the conformity requirements of the product it will be accepted as the pronouncement of the actual seller and if the former person was acting in his quality of offering services as or in a regular occupation or business on a professional basis. So this is really going far – in your benefits – for you as a consumer.

Coming back to the story I started with: even if the seller denies that I have a warranty, I have the right (as a consumer) to claim that my car or my TV should perform in a way other cars or a TV in the same price range are performing. This is what we call: “conformity”.

I handled a case and will use it as an example. A six month’s year old SUV from an American – worldwide – brand got stuck in the rain when it drove through a splash of water. The mechanic found out that the water got into the engine (the cylinders) by the exhaust pipe.

The expert from the dealer was contacting the manufacturer in the US but could not get in touch with him and they could not solve the problem. The manufacturer insisted that it was to blame on the client (the consumer). Of course the dealer agreed fully with it. Finally they came to me and the question was: should a car costing $40,000 get stuck driving through a splash of water in Sint Maarten?

If you look at the advertisement from that car, it drives through snow, mud and little rivers. You see it driving in the Alps going up and down. So do they not have rain in the US or in Europe? Do we have more rain than other countries have? Does every car in that “price range” have the same problems? If the answer to the last question is NO then your car will not pass the conformity assessment and the seller (the dealer) remains responsible.

The same way as it works with a car it works with your TV. If your 4 K, Smart LED, UHD, 3D, 65” TV gives up working after a short period of time the same questions as the “conformity assessment” checks by a car should be followed. That means: If a TV from a certain brand has this issue and other TV’s in another brand with (more or less) the same specification keep working well your TV is not according to the standards of “Conformity” and the seller stays responsible. With more or less I mean: there could be a difference in the inches of the TV but that is not important in this case.

As this chapter is a bit difficult to understand I try to explain it with as much as possible examples. So by next week I will explain a real court case (from Sint Maarten) on what happened with a car and the “conformity assessment” in the Court in First Instance and in appeal by the Common Court of Justice.

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