Do you know the difference between a guarantee and a warranty? There are some specific legal uses of each term, but when it comes to something offered to a consumer as part of a purchase, the terms are indistinguishable. A guarantee or a warranty is a promise that if something happens some form of redress will be offered. It is very likely that the guarantee, if it is a genuine offer to the consumer, will form part of the contract and therefore could give a consumer the right to a legal claim if the guarantee is not honoured.
Who is offering the guarantee? Some retailers have their own guarantee that applies to everything they sell. This may be on a notice in the store, on their website, or displayed on the sales tickets. This gives consumers reassurance that they are dealing with a company that stands by its products, and many retailers have benefitted from an enhanced reputation because of the promises they make and honour.
Many guarantees are offered by the manufacturers. On the face of it, this is to reassure consumers about their products, but it can also provide advantages to their businesses such as allowing the manufacturer to collect customer data for direct marketing purposes and to help them create brand loyalty.
Not all guarantees are visible at point of sale and some products have guarantee documentation in the product packaging which the retailer may never see and which the consumer may not have seen when they bought the product but which may still create a legal liability if something goes wrong.
Many retailers assume that they have no liability for manufacturer’s guarantees and that in the event of a complaint they can simply offload the issue to the manufacturer, often telling the customer to contact them directly. However, retailers are liable for any promises which form part of the contract including those made by a manufacturer. If the manufacturer went out of business, the retailer would have no choice but to honour whatever the manufacturer promised in their guarantee.
For the consumer, there’s a double benefit. If the retailer goes out of business, they can still claim from the manufacturer under the guarantee.
What does a guarantee offer? This will vary, but to be valid the guarantee must offer the consumer more protection than they already have under consumer law and it must not imply that they only have the limited rights of the guarantee if the law already gives them better protection. This is why all guarantees include the wording ‘This does not affect your statutory rights’ – and if that statement is not true this could be an issue that Trading Standards might look into.
Consumers do not normally have any contract with a manufacturer and so a manufacturer’s guarantee is creating a totally new avenue for the consumer to use and so manufacturers can limit their obligations as there were none before the guarantee was offered.
Under consumer law a legal claim can be made up to six years after the contract – usually taken from the date the consumer receives their goods unless they have chosen to delay the delivery. Any guarantee which stipulates a time limit of less than 6 years is likely to be considered to be reducing the consumer’s statutory rights. The most common ‘guarantee’ I encounter regularly is the usually unwritten ‘fitting guarantee’ that a fitter will only guarantee his or her work for one year. If this was brought up in defence against a legal claim it would almost certainly be thrown out by the District Judge with some polite but firm legal warnings for good measure.
For example, a carpet with a ten-year manufacturer’s guarantee delaminates after two years. The manufacturer points out that this is due to incorrect fitting because the gripper was not holding the tension on the carpet and allowing it to ruck so the creases have broken the bond of the secondary backing. The retailer says fitting is only guaranteed for one year, so the consumer is left with a damaged carpet due to poor fitting and is therefore being denied their statutory right to a satisfactory product for a reasonable lifespan. In these circumstances a limited guarantee period would be seen as unfair and unenforceable.
The statutory rights of a consumer are those set out in the Consumer Rights Act, the Consumer Credit Act and other relevant legislation and these rights must always be honoured, whatever a guarantee may say.
Richard Renouf is an experienced customer service and flooring consultant and expert witness. He can be contacted via The Stocklists’ editor – lauren.mccarthy@kick-startpublishing.co.uk – and your questions may even find their way into future articles to help others dealing with similar situations. Please note that this article is not intended to be, or to be a substitute for, legal advice.