Consumer protection

We take a look at how consumer protection warranties apply to the sale of consumer goods, including boats

by Federico Santini* – photo by Alberto Cocchi

In recent months we have seen a boom in sales of second-hand yachts and in new builds. At a time like this, it is important that both people buying boats and dealers are fully aware of their respective rights and obligations. In this issue, we look at the content and scope of the warranties against defects which buyers of consumer goods, including yachts, have a right to.

The repair or replacement must be carried out by the seller free of charge, at no cost to the consumer, within a reasonable time after the request is made.

The Consumer Code, issued by Legislative Decree 206 of 6 September 2005, transposes European Union provisions on protecting consuming rights into Italian law. In general terms, the rules apply to contracts covering sales, exchanges, administration, procurement, construction, and all others relating to the supply of “consumer goods”, which are defined as being any movable asset, whether finished or still unassembled, new or used, tangible or intangible, and thus include yachts of any size and type.

In our case, the rules apply to contracts concluded between a “consumer”, who is defined by article 3 as “any natural person acting for purposes unrelated to any entrepreneurial, commercial, craft or professional activity carried out”, and a “seller”, who is “any public or private natural or legal person who in the exercise of their business, commercial or professional, uses the contracts referred to in paragraph 1”. So essentially the rules laid down by the Consumer Code apply in all cases in which a private individual purchases a new or used pleasure yacht from a shipyard or a distributor.

THE CONSUMER CODE REGULATIONS APPLY TO ALL CASES IN WHICH A PRIVATE INDIVIDUAL PURCHASES A NEW OR USED PLEASURE YACHT FROM A SHIPYARD OR A DISTRIBUTOR.

The content of the warranty that the seller is required to provide to the consumer relates to any “patent defect” of the goods sold. The sold item is presumed to comply with the contract if it is suitable for so-called “normal use” of the product, meaning how goods of that type are normally used, if it is suitable for any “specific use” that the consumer requires and has made known to the seller (and accepted through actions which can be construed as consent) when the contract is signed, if it conforms to the description made by the seller, if it possesses the same qualities as the model or sample presented to the consumer, if it has the same quality and performance as typical goods of the same type, which the consumer can reasonably expect, taking into account the nature of the good and, where applicable, any “public statements” on the specific characteristics of the good by the seller or by its agent or representative, for example in advertising.

However, the seller will not be liable for any patent defects found by the consumer if the latter, at the time the contract was signed, knew of the defect or could not fail to have detected it using ordinary diligence, or if the defect is the consequence of instructions or materials provided by the consumer. Furthermore, the warranty is limited to defects that pre-existed delivery and were discovered by the consumer only at a later time (and within the terms described below); it does not concern any defects that occurred, for example, due to improper use by the consumer or third party.

If the defect becomes apparent more than 6 months after delivery, the consumer will have to provide proof that the defect was already present at the time of delivery.

The guarantee has a duration of two years starting from the delivery of the goods. For second-hand goods, the seller and the buyer can agree in writing to provide for a shorter period of liability, but this cannot be less than one year. The duration of the warranty in question cannot be waived. According to the second paragraph of art. 132 of the Code, “the consumer loses the rights provided for by article 130, paragraph 2 if he does not report the patent defect to the seller within two months from the date on which he discovered the defect. The buyer is not required to make a report if the seller has acknowledged the existence of the defect or has concealed it”. If the patent defect is covered by the warranty, the consumer will have the right to choose between requesting that the seller repair the defect or replace the goods, unless the option requested is objectively impossible or excessively burdensome compared to an alternative. So, for example, a seller would not be required to replace an item, even if requested to do so by the consumer, but would be required to repair it if replacement is objectively impossible, or if it is too expensive compared to the value that the good would have without the defect, or the extent of the defect, or if the alternative solution can be carried out without significant inconvenience to the consumer.

Repairs or replacements must be carried out by the seller free of charge, at no cost to the consumer, within a reasonable time after the request is made, 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 them. Only if: a) the repair and replacement are impossible or excessively expensive, or b) the seller has not repaired or replaced the goods within a reasonable time, or c) the replacement or repair previously carried out have caused significant inconvenience to the consumer, the consumer is allowed to request a reduction of the price or the termination of the contract. These are exceptional remedies that can only be carried out in steps and only in the extreme cases mentioned above.

THE GUARANTEE HAS A DURATION OF TWO YEARS STARTING FROM
THE DELIVERY OF THE GOOD.

Another important aspect of the warranty covering patent defects stipulated by the Consumer Code involves the burden of proof of the defect, as responsibility for providing it varies according to the time when the defect occurs. If the defect becomes apparent within 6 months of delivery of the goods, it is presumed that it already existed on that date, and it will be up to the seller to prove that, at the time of delivery, the goods were fully compliant and the alleged defect only occurred subsequently. If, on the other hand, the defect occurs more than 6 months from delivery, the consumer will have to provide proof that the defect was already present at the time of delivery, and also show that they have respected the prescription and forfeiture terms clarified above.

In contact to the regulations on guarantees in articles 1490 and following of the civil code, which may be contractually waived by the parties, the provisions of the Consumer Code summarised above are essentially mandatory. Article 134 of the Consumer Code states “Any agreement made before the seller has been informed of the patent defect, aimed at excluding or limiting, even indirectly, the rights recognised by this paragraph is null and void. The nullity can only be asserted by the consumer and can be assessed ex officio by a judge.” Again, paragraph 3 of the same article states that “any contractual clause which, in applying the legislation of a non-EU country, has the effect of depriving the consumer of the protection ensured by this paragraph, and where the contract has a close connection with the territory of a Member State of the European Union, shall be considered void.”. That is why even the use of the Memorandum of Agreement (MOA) approved by the MYBA does not exclude applying the regulation mentioned above whenever the buyer is a “consumer”, i.e. a natural person residing in any country of the European Union that purchases the yacht for recreational purposes. The provisions of the Consumer Code follow the provisions of art. 7 of the European Directive 1999/44 / EC and which are thus contained in the domestic legislation of all Member States of the European Union.

(Consumer protection – Barchemagazine.com – March 2022)