1 October 2009

The implied warranty of quality

Something that suppliers of goods to consumers will have to get used to is the imposed warranty of quality placed on all goods sold in transactions that are subject to the Act.

Gone are the days when suppliers can limit warranties to very short periods, or carve out bases for claims under warranties on defective goods. Every good sold (whether new or second hand) is subject to a six month warranty of quality, subject to one exception. It is permissible for suppliers to sell goods that are defective, or which may not be fit for purpose, on the express understanding that this is the case and having specified the nature of the defect in the good.

The six month implied warranty of quality means that consumers have the right to return defective goods within six months of delivery. The return must take place at the supplier's sole risk and expense. Most importantly, the consumer has an election as to whether to direct that the defective good should be, on the one hand, repaired or replaced, or on the other hand, that the consumer should be refunded the purchase price of the good, in full.

If the consumer elects to have the good repaired, then there is an implied three month warranty on the repair. The effect of this is that if the repair proves to be less than entirely effective or, if during the three month period any other defect arises, the consumer may demand that the supplier replaces the good or refunds the consumer in full. The consumer does not have to permit the supplier a second opportunity to repair the defective good.

These warranties represent the minimum quality assurance that must accompany the sale and repair of every good, but are in addition to any other warranty that may be given by the supplier, or any other right the consumer may enjoy in law in respect of defective goods.

It is most important to note that it is unlawful to attempt to contract out of any right afforded to a consumer in terms of the Act. Even if a consumer were to sign terms and conditions upon purchasing a new good, which terms and conditions purported to limit the warranty in terms of duration, the nature of defects covered by the warranty, or rights available to the consumer under the warranty, such an agreement would be rendered void by the Act. Suppliers of goods will have to ensure that they are geared to deal with returns of defective goods and to make refunds where these are demanded.

Nick Altini,
Director, Competition

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