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Legal guarantee regime for consumer goods and Main Consumer Rights

I. Scope of information

We were asked for an information note on the legal guarantee regime for consumer goods and the main consumer rights. This document aims to present a panoramic view of these two topics, bearing in mind the activity to be pursued by Fine Collectibles Europe in Portugal (which is why there will be no reference to services, contracts or the rental of consumer goods).

II. Legal guarantee regime

The legal regime for the sale and guarantee of consumer goods is contained in Decree-Law no. 67/2003, of 8 April, the most recent amendment to which was introduced by Decree-Law no. 84/2008, of 21 of May. This statute also transposes Directive 1999/44 / EC, of the European Parliament and of the Council, of 25 May.
The rules provided for in the legal regime aim to regulate B2C relations (or, in the legally established expression, between "professionals" and "consumers"). A consumer is defined as a person who is provided with goods intended for non-professional use, by a person who carries out an economic activity with the aim of obtaining benefits.
Under the terms of the diploma in question, the seller has the duty to deliver to the consumer goods that are in conformity with the purchase and sale contract. It is assumed that there is no conformity between the consumer goods and the contract whenever they, namely:

(i) Do not comply with the description that is made by the seller or do not have the qualities of the good that the seller has presented to the consumer;

(ii) are not suitable for the uses normally given to goods of the same type;

(iii) Do not exhibit the usual qualities in goods of the same type and which the consumer can reasonably expect, given the nature of the good and the public statements about its concrete characteristics made by the seller, the producer or his representative, namely in advertising or on labeling.

The seller is liable to the consumer for any non-conformity existing at the time the goods are delivered, and the lack of conformity that manifests itself within two years from the delivery of the movable thing is presumed to exist already on that date, unless that this seems incompatible with the nature of things or with the characteristics of the lack of conformity. The term referred to is normally referred to as the legal guarantee term.
To exercise the rights listed below, the consumer must report the lack of conformity to the seller within two months (in the case of movable goods) from the date on which the non-conformity was detected.
Identified as a non-conformity between the good and the contract, the consumer has the right to have it replenished free of charge (including transportation, labor and material expenses), which can happen through:

(i) Repair:
(ii) Substitution (iii) Adequate price reduction; or
(iv) Termination of the contract.

The consumer can exercise any of those rights, unless it proves impossible or constitutes an abuse of rights. The repair or replacement of the asset (furniture) in case of non-compliance must be carried out within a maximum period of 30 (thirty) days. In addition, the rights related to the legal guarantee are transferred to a third party who, meanwhile, acquires the property.
If the consumer good corresponds to a used mobile thing, the legal guarantee period can be reduced to one year, with the parties' agreement to that effect.
It should also be noted that if, in the event of non-conformity, the good is replaced, the successor has a two-year warranty period (in the case of movable goods), from the respective delivery.
The consumer can also exercise his rights directly against the producer, who can oppose the exercise of those rights whenever it occurs, namely:

(i) That the defect results exclusively from the seller's statements about the thing and its use or misuse;
(ii) That he did not put the product into circulation;
(iii) Consider that the defect did not exist at the time the product was put into circulation.

The producer representatives in the consumer's home area are jointly and severally liable to the producer towards the consumer.
If the seller satisfies the consumer's rights, mentioned above, he will then have the right of return (that is, he will be able to claim compensation for the charges he incurs) over the professional to whom the good was previously acquired.
While not being able to depart from the legal guarantee regime - as this is mandatory - the seller and the consumer may agree to extend the warranty period. In this case, the voluntary guarantee must contain the following elements:

(i) Declaration that the consumer enjoys the rights provided for in this decree-law, and in other applicable legislation, and that such rights are not affected by the guarantee;
(ii) Information on whether the guarantee is free or not, and, in the latter case, an indication of the charges to be borne by the consumer;
(iii) The benefits attributed to the consumer through the exercise of the guarantee, as well as the conditions for the attribution of these benefits, including the list of all charges, namely those related to transportation, labor and material expenses , and also the deadlines and the way of exercising it;
(iv) Duration and spatial scope of the guarantee;
(v) Business name or name and postal address, or, if applicable, electronic, of the author of the guarantee that can be used to exercise it.

Finally, it is important to note that failure to observe the deadlines for repairing or replacing the item that does not comply with the contract constitutes an infraction, punishable by a fine between € 500.00 (five hundred euros) and € 5,000.00 (five thousand euros), in the case legal persons; in the same sense, non-compliance with mandatory mentions related to voluntary guarantees is also an offense, punishable by a fine between € 3,500.00 (three thousand and five hundred euros) and € 30,000.00 (thirty thousand euros), in the case of legal persons.

III. Main consumer rights

The main rights that assist the consumer - ie, those who are provided with goods destined for non-professional use, by a person who carries out an economic activity with the aim of obtaining benefits - are set out in Law 24/96, of July 31, last amended by Law No. 63/2019, of August 16.
Generally speaking, the consumer is entitled to:

(i) the quality of goods and services;
(ii) the protection of health and physical security;
(iii) Training and education for consumption;
(iv) Information for consumption;
(v) the protection of economic interests;
(vi) The prevention and remedying of property or non-property damage that result from the offense of homogeneous, collective or diffuse individual interests or rights;
(vii) Legal protection and accessible and prompt justice;
(viii) Participation, in a representative way, in the legal or administrative definition of their rights and interests.

Considering the activity to which Fine Collectibles Europe is engaged, we consider the rights referred to in (i), (ii), (iv) and (v) above to be particularly relevant.
With regard to the quality of the goods, the law establishes that the goods must be able to satisfy the purposes for which they are intended and to produce the effects attributed to them, according to the legal rules in force or, in the absence of these, of appropriate to the legitimate expectations of the consumer.
On the other hand, it is forbidden to supply goods that, under normal or foreseeable conditions of use, including duration, entail risks incompatible with their use, which are not acceptable according to a high level of protection of people's health and physical safety. .
In addition, the supplier of goods, both in the negotiation phase and in the conclusion of the contract, must inform the consumer in a clear, objective and appropriate manner (unless this is evident from the context), on the following elements:

(i) the main characteristics of the assets;
(ii) The identity of the supplier of goods, namely the firm or company name, the geographical address at which it is established and the telephone number;
(iii) The total price of the goods, including the amounts of fees and taxes, additional transport charges and delivery and postal charges, when applicable;
(iv) An indication that additional postal, transport or delivery charges and any other costs may be due, in cases where such charges cannot be reasonably calculated before the contract is concluded;
(v) the payment terms and the delivery term for the goods;
(vi) The system for handling consumer complaints by the professional, as well as, when applicable, the consumer dispute arbitration centers that the professional adheres to, and the existence of necessary arbitration;
(vii) The existence of a guarantee of conformity of the goods, with the indication of the respective term, and, when applicable, the existence of after-sales services and commercial guarantees, with description of their conditions;
(viii) The consequences of not paying the price of the good.

The aforementioned information duties apply to all participants in the commercial circuit, from the producer, to the importer, through the distributor, to the final consumer.
The risks to the health and safety of consumers that may result from the normal use of goods must be communicated, in a clear, complete and appropriate manner, by the supplier or service provider to the potential consumer.

(i) Drafting contract clauses clearly and precisely;
(ii) Do not include clauses in individual contracts that cause a significant imbalance to the detriment of the consumer.

The consumer is also entitled to after-sales assistance, for the normal average duration of the products supplied.
The making of any additional payments compared to those originally foreseen always requires the express agreement of the consumer, and must be requested in a clear and understandable way.
In terms of delivery times, if not otherwise agreed between the parties, the purchased goods must be delivered within 30 days after the conclusion of the contract. The consumer may, in that case, request delivery within an additional period, and in case of non-compliance, he may terminate the contract.
With regard to the transfer of risk, the risk of loss or damage to the goods is transferred to the consumer when he or a third party indicated by him, other than the carrier, acquires physical possession of the goods. If the consumer entrusts transport to a person other than that proposed by the supplier of goods, the risk is transferred to the consumer with the delivery of the goods to the carrier.
Finally, the provision of a telephone line for contact within the scope of a legal consumer relationship does not imply the payment by the consumer of any additional costs for using that means, in addition to the basic tariff, although telecommunications operators have the right to bill these calls.