How long is the legal guarantee for new and second-hand goods?
For new goods, the duration of the legal guarantee is two years and this duration starts with the delivery of the goods. For used goods, the seller and the buyer may agree to provide for a lesser period of liability, but, not less than one year (See Art. 133 of the Consumer Code).
Who is responsible for the repair of the goods in the event of non-compliance with the contract of sale, including defects?
The seller is liable for any lack of conformity existing at the time of delivery of the goods, therefore, the consumer must always contact the seller, who is the only person with whom he has a contractual relationship. The producer will have to answer in the first measure of the possible non-conformity of the good delivered to the consumer only in the measure in which it can also be said "seller", that is if it exercises direct forms of sale to the consumer (See art. 133 of the Consumer Code).
Within what period can the consumer claim the defects of the goods purchased?
The legal guarantee lasts two years from the delivery of the goods and the action of the consumer to claim the defects (not fraudulently hidden by the seller) prescribes, in any case, 26 months from the delivery itself (See art. 133 of the Consumer Code).
Who is responsible for demonstrating the presence or lack of defect upon delivery? How much time do they have to do this from the moment delivery takes place?
The burden of proof is shared between the seller and the consumer, based on the moment at which the defect becomes apparent. Two different situations may arise:
a. In the absence of evidence to the contrary, it must be assumed that any lack of conformity that becomes apparent within 1 year of the goods being delivered already existed at that date and, therefore, it is the responsibility of the seller to demonstrate that the goods were fully compliant, and that the defect reported by the consumer arose following delivery;
b. On the other hand, if defects become apparent more than 1 year after delivery, it will be the consumer who must provide evidence that the defect was present at the time of delivery.
Similar rules also apply to goods with digital elements.
For goods with digital elements for which the sales contract provides for the continuous provision of digital content or digital service for a period of time, the burden of proof as to the conformity of the digital content or digital service within the two-year period of delivery (or the longer term of the contract for the supply) is the responsibility of the seller for any lack of conformity that manifests itself within the above terms (See art. 135 of the Consumer Code).
What solutions must be offered by the seller and under what conditions?
If there is a lack of conformity, during the period of the legal guarantee, the consumer is recognized, first, with the right to repair or replace the goods (primary remedies) to obtain the "restoration of conformity" at no cost; alternatively, if this is not possible because the two primary remedies are not feasible, the consumer may request the proportional reduction of the price or the termination of the contract (secondary remedies).
There is a hierarchy between the instruments provided for consumer protection; in fact, you can resort to the reduction of the price and the termination of the contract only in the cases provided for by law (art. 135-bis of the Consumer Code).
Are there third-party bodies commissioned to provide evidence of the defect?
There are no third-party bodies commissioned to provide evidence of the defect.
Are there other legal guarantees provided under national law in addition to the legal guarantee of conformity?
Article 1490 of the Italian Civil Code establishes that the seller must guarantee that the item sold is free from defects that render it unsuitable for its intended use or significantly reduce its value. However, while it is possible to derogate from this guarantee under contract, the protection offered to the consumer by the Consumer Code cannot be diminished in any way by the will of the parties (inalienability of consumer rights).
Relevant legislation
- Article 133: (Seller’s liability);
- Article 135: (Burden of proof);
- Article 135-bis: (Remedies).
- Article 1490: (Warranty for defects in sold goods).
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