The legal guarantee applies to purchases made by consumers. These rules come from a 1999 European Directive (1999/44/EC), which was transposed into Belgian law (Act of 1 September 2004) and included in the Civil code (articles 1649bis to 1649octies).
Having some knowledge of the guarantee act is always useful when trying to solve a dispute, which is why a general outline of its application is given hereafter. You will find several topics covering your legal rights and explaining what to do in case of a guarantee dispute.
Whoever wants to get to work immediately will find several letter templates on the following page. They are only intended as a general guideline: each guarantee dispute has general but also specific features, and you will therefore have to adapt the templates to the content of your complaint.
Your seller must deliver goods which are in conformity with the contract. As a consumer, you are entitled to a reliable, defect-free product. In the case of second-hand goods, the guarantee does not cover any defect mentioned by the seller and therefore known to the buyer.
The product must correspond to what is expected within the context of a normal use. The Act speaks of a conform product at the delivery (article 1649ter), which means that the product must correspond to the description used by the seller in advertising and in the sales documents (such as the order form). Consumer goods usually include an explanatory leaflet with product specifications as well as assembly and maintenance instructions.
The normal expectations depend on the type of product (new or second-hand) and on the normal life expectancy of the product. A washing machine can be expected to work for 5 years without any notable problem. Small electronic appliances such as mobile phones, smartphones, laptops, tablet computers, etc. are used daily. Due to fragile electronic components and intensive use, they are therefore slightly more liable to defects than other household appliances. However, according to the law, a normal life expectancy of 2 years should still be expected for them.
If you buy a new product you are as a consumer entitled to a two-year guarantee period. In the case of second-hand goods, the seller usually limits the guarantee to the legal minimum of one year, but if he does not, you do benefit from a two-year guarantee period according to the law.
The guarantee rules of the act of September 2004 only apply to purchases made by consumers, i.e. goods purchased by a consumer from a professional seller in the course of his business. Only consumers can demand that a professional seller applies the legal guarantee.
It is useful to know that only natural persons are considered consumers, and only for private purchases.
Legal entities (companies with limited liability, public limited companies, non-profit organisations, public authorities, etc.) are not consumers (according to the law) and the Guarantee Act does not cover their purchases. In this case, the professional buyer (B2B relationship) can refer to the ‘serious hidden defects’ regime, on which there is ample case law and which can be found in articles 1641-1649 of the Civil Code.
The legal guarantee rules cannot be invoked either for consumer-to-consumer purchases (C2C). If you buy a second-hand car from a private seller and discover a problem later on, you cannot rely on the Guarantee Act: it only covers business-to-consumer relationships (B2C).
You can only invoke the Guarantee Act for physical, movable goods, i.e. cars, bikes, furniture, household appliances, laptops, tablet computers, mobile phones, smartphones, etc. Goods that become immovable after installation (kitchen cabinets, boiler, solar panels, veranda, etc.) are also covered. Case law is available at the European level.
The Guarantee Act cannot apply to the purchase of immovable goods such as a house or a flat.
Unphysical movable goods such as licences for software or computer games are not covered either as there is no transfer or property rights in these cases. User rights are not considered physical movable goods.
Animals are also considered movable goods. When you buy a puppy from a professional breeder, the legal guarantee is also applicable in addition to the guarantee provided for in the mandatory health certificate. If your dog suffers from an incurable genetic disease or is not as pure-bred as stated on its pedigree, you can invoke the legal guarantee due to a lack of conformity at the time of delivery.
The Act gives a deadline of two years but it can obviously be shorter if this corresponds to a normal life expectancy: you cannot expect the flowers you buy from a florist’s shop to last for two years.
You can only rely on the guarantee when a sale has occurred and a price was paid for the product. Free tombola gifts are therefore not covered. The amount you pay is not relevant in itself. If you receive a smartphone for 1 euro when you purchase an internet pack, you are dealing with a conditional sale. Even when the smartphone is given to you for free when you get a new phone plan, you can rely on the legal guarantee. This is also the case for free options granted at the purchase of a new car. In these cases, the seller must give a two-year guarantee period for the additional product.
As for goods purchased during the sales, the legal guarantee only covers defects that were unknown to the buyer at the time of delivery.
In addition to rights, there are also obligations for the consumer. You should handle the product with due diligence, which means that you should behave reasonably and as a sensible person and take all necessary measures to prevent (predictable) damage.
You have to follow the seller’s and/or the manufacturer’s instructions for use. Besides the technical features and directions for the correct use of the product, they usually include assembly diagrams, maintenance tips, information on spare parts, safety rules and the conditions of the manufacturer’s guarantee. When you buy an electric chain saw you can expect the seller to give you useful tips for a correct use but not to read the instructions in detail with you.
Anyone who buys a car has to take good care of it, preventively (e.g. replacing the driving belt following the manufacturer’s instructions) or if the need arises (replacing worn-out brake pads). Defects that are due to normal wear or lead to preventive replacement are not covered by the legal guarantee.
As regards maintenance costs, there are different ‘normal expectations’ for new (for instance a brand new car) and second-hand goods, in particular if they are no longer in mint condition (for instance a ten-year-old second-hand car with over 175,000 Km in service).
The legal guarantee cannot be invoked either for defects due to accidents (for instance, your smartphone falls from your hands onto a concrete floor or in the dishwater and stops working).
This is also the case if you act carelessly or do not follow the instructions for use. Whoever uses their electric chain saw to cut the large roots of a huge tree completely disregards the manufacturer’s limitative instructions, and if the engine is damaged due to overheating, the seller’s guarantee will not cover it.
You should also take the necessary measures to avoid further damage due to further use. The guarantee of your car manufacturer does not work if you have ignored a red signal on the dashboard and the engine is damaged because you kept on driving anyway.
It is not always easy to determine whether you are dealing with a lack of conformity as defined by the Act. Further examination is required in case of doubt regarding the origin of a defect.
Within the context of the legal guarantee, you must obviously send your complaint to the seller. He is the first contact person and is also legally liable. He will ask you to show the proof of purchase (purchase form, receipt, delivery form…). He also decides whether the case is covered by the legal guarantee or not.
The seller can rightly refuse the intervention of the guarantee if, for instance, you have sent your car for repair elsewhere and without his consent.
If the product shows a defect shortly after purchase, you must tell the final seller on time. The Act gives a deadline of at least two months to notify defects under the legal guarantee. It is in your best interest to send this notification as soon as possible.
The Act makes a clear difference: if the defect appears in the first 6 months after purchase, the consumer does not have to prove anything, as there is a legal presumption that the defect already existed at the time of the delivery. If the final seller still refuses to apply the guarantee, he will have to prove that there was no lack of conformity at the time of the delivery and that the defect is due to normal wear and tear, lack of proper maintenance or external factors (such as an accident). This is the reversal of the burden of proof: the seller, not the consumer, has to bring evidence.
If the defect appears more than 6 months after the delivery, the seller can then ask the consumer to submit evidence. After 6 months, the normal burden of proof by the complainant is applicable. Anyone asking an intervention in the context of the legal guarantee must be able to prove, at the seller’s request, that the defect was already present at the time of the delivery.
If the seller contests that it is a lack of conformity, you will have to appeal to an independent expert. Let us imagine that you already have to replace the rear shock absorbers of your new car after a year and half, a car expert will have to determine whether this was a lack of conformity at the time of the delivery or wear and tear due to abnormal use (overload) or to an accident.
If the product presents a defect, you are entitled to a repair or a replacement. If a repair is possible without exaggerated costs and within a reasonable deadline, you cannot simply demand a replacement. You do have the right to receive an equivalent product in replacement if it cannot be repaired (out of production, unavailable spare parts…) or if the repair cannot take place within a reasonable deadline.
What can be considered a ‘reasonable’ deadline depends on the type of product and on common practices in the sector. Repairing a car usually takes less than a week, but having a smartphone repaired by a specialised service centre (approved by the manufacturer) could easily take 3 weeks or even more.
The seller must make sure that there is no significant inconvenience for the consumer. The guarantee period is also extended to cover the repair time. For instance, if your smartphone spent 6 weeks in a service centre for repair, the guarantee is extended by 6 weeks.
The Act also provides a possibility of requesting an indemnity, for instance if the seller does not complete his guarantee duties without significant inconvenience to the consumer.
Direct consequential loss is also taken into account: if your freezer breaks down and is still under guarantee, the seller will have to take care of the repair and to compensate you for the lost contents.
The Act clearly states that a repair or replacement must be completed free of charge for the consumer. The seller cannot charge anything for spare parts, materials, hours of work, shipping, transportation, administration and investigation when the product is repaired or replaced under guarantee.
The guarantee is a legal right of the consumer and it must be granted free of charge by the professional seller. This is a fundamental right: clauses that invalidate the legal right to a guarantee are void. If a second-hand car dealer only accepts to give you a guarantee if you pay a surcharge, this can be a sign that he is not trustworthy.
If a repair or a replacement are not possible, you are as a consumer entitled to have the price reduced or the contract rescinded. The seller must grant a reduction of the price when the product can be kept despite the defect. If this is not an option, you can require the seller to rescind the sale and to refund the price.
However, in case of a refund, the seller can take into account the period of normal use. If you have a problem with your laptop after a year and a half, the seller can take the period of normal use since the delivery into account, as well as a ‘wear-and-tear’ deduction. He must remain reasonable and take the normal duration of use for an average consumer into account.
Rescinding the sale means that the seller must proceed to a refund. Keeping the intent of the act in mind, a consumer does not have to accept a refund in the form of a voucher. The seller cannot ‘force’ you to purchase a new appliance from him.
Most purchases are covered by a manufacturer guarantee, a contractual warranty against manufacturing defects and against defects in the concept or the execution. The manufacturer (not selling directly to consumers) does not have to give a legal guarantee of two years.
Some manufacturer guarantees cover the goods for two years or more (e.g. new cars) while others are limited to one year only (e.g. electronic appliances), and sometimes the manufacturer restricts his guarantee to 6 months (e.g. laptop battery).
You can inform the manufacturer or the importer of your guarantee issue. If, as a consumer, you have purchased a product from a professional seller, then he is responsible for the guarantee until two years after the delivery. You must always report a guarantee dispute to the seller: the final liability lies with him since you bought the product from him.
When the legal guarantee period is over, you can invoke the manufacturer guarantee if it has not expired.
The rules about serious hidden defects are included in articles 1641-1649 of the Civil Code and do not specify any deadline. After the two-year legal guarantee and/or the extended guarantees concluded with the seller (for instance 5 years for your new car) have expired, you can still invoke these rules but the burden of proof will lie with you.
Additional guarantees can come from the manufacturer or from the final seller. You usually have to pay for them: in this sense, they are commercial guarantees. They can be concluded as an annex to a sale contract or as a separate agreement. In some cases they take the form of an insurance coverage.
As their name suggests, they offer additional guarantees, either an assistance contract (e.g. 3 months of support when you purchase a laptop), a free of charge replacement vehicle, a maintenance agreement, an insurance against damages and/or theft… An extended guarantee period (e.g. 3 years for your new laptop or 5 years for your new car) is also a commercial guarantee since the seller is under no obligation to give a guarantee of more than two years.
The Guarantee Act already offers a large protection to the consumer, who can then in no way be obliged to take (and pay for) additional guarantees. You should always weigh up the advantages of an additional guarantee and its costs before you take a decision. Reading the contractual guarantee terms with great attention (in particular the additional warranties) is a tip that can help you save money.
In case of a guarantee problem you should contact the point of sale. It is better to speak to the boss as only he can say whether the guarantee is applicable or not. If you handle with the store staff, they are usually not entitled to make a judgement on your guarantee dispute. For electronic appliances, this decision is usually left in the hands of independent service centres (approved by the manufacturer and/or final seller). The final decision to apply the legal guarantee or not is up to your seller.
In many cases, the defective product has to be examined in order to discover the source of the defect. Is it still possible to repair it? Should it be replaced? Or reimbursed? Or is it an exception to the rules?
If after an analysis the seller takes the view that the legal guarantee is not applicable (no lack of conformity at the delivery), the consumer can be charged for administrative, shipping and investigation costs, but he must be informed beforehand, preferably in writing to avoid discussions later on. The seller can be asked to provide an estimate for the repair.
In many guarantee disputes, going to court is not an option for the consumer because of the high costs and procedure rules, which is why it is in your best interest to try to solve the dispute amicably. The best way of doing this is to have a personal conversation with the decision-maker. If this is not possible, you should send your complaint by e-mail and/or letter.
Directly sending a registered letter without contacting the seller first is not a good starting point to solve a dispute amicably.
A quiet discussion between buyer and seller can sometimes work wonders. Many complaints are solved with this type of verbal agreement and without involving other parties. A conscientious seller is only satisfied when his customer is happy with the purchase. Customer loyalty and trust go hand in hand with a good after-sale service, and the correct application of guarantee rules is one of its cornerstones.
Everything starts with attempts to solve the dispute amicably during conversations with the seller. If this leads to a verbal agreement, it is advisable to write it down, especially if the remedy cannot be completed immediately. This can be done by the seller or, if he doesn’t do it, by the consumer.
If the issue cannot be solved during a discussion, you will have to follow the written complaint procedure. The general terms of sale usually mention that complaints must be filed in writing, and a written complaint is also important in the context of the rules on the production of evidence.
The written procedure starts with a regular letter or e-mail. If the seller does not answer, send him a reminder. If he still does not react, you can send a registered reminder. Sometimes this will not lead to a solution either. In the context of a (possible) legal action, it is very advisable to send an official notification by registered delivery to the seller.
When sending a registered letter, it is the date of sending that counts. It happens that registered letters are not picked up (on time), which is why it is sometimes advisable to send a regular letter in addition to the registered one: if the seller does not pick up the registered letter, he will still have received the regular one.
If the seller was declared bankrupt in the meantime, it means that you can no longer hold him liable: guarantee disputes, just like claims disputed by the seller, are neither definite nor binding for the seller in the absence of an agreement on the subject. As such, they are not taken into account for the liquidation and distribution of the assets of the bankruptcy. If the seller signed an IOU, maybe you still have a chance as you can then file a claim. This has to be done shortly after the publication of the bankruptcy judgement (usually within 30 days). Your chances remain low if the assets are insufficient to allow for a compensation, as you do not have preferred-creditor status.
If the seller is declared bankrupt, you can still rely on the manufacturer guarantee (if it has not expired). If you signed for an additional insurance coverage, you can file a claim with the insurer.
The Economic Inspection takes action in the general interest of consumers and companies, and does not intervene in individual, contractual disputes (regarding, for instance, guarantee rules or invoices…) As an enforcement service, it can only take action at the criminal level in the cases specifically provided for by the law. In case of infringements, it imposes a fine on the contravener by way of an administrative transaction procedure. In many cases, this criminal sanction is preceded by a warning procedure.
Legal guarantee rules are included in articles 1649bis to 1649octies of the Civil Code. The remedies (repair, replacement, reimbursement) are only regulated at the civil level.
There are no criminal sanctions for discussions about application (such as whether a defect is a lack of conformity at the time of the delivery as defined by the act) in the Guarantee Act.
The Economic Inspection is not entitled to intervene in individual guarantee disputes and cannot carry out any technical analysis to discover the source of the defect. Did it exist at the time of the delivery or is it due to a wrong use?
It is also not its task to act as a mediator or to give a verdict in individual complaints.
In the context of its general investigations, the Economic Inspection does verify whether sellers comply with legal guarantee provisions, especially in their general terms of sales, an can take action against unfair market practices such as the sometimes misleading offers of additional guarantees for which you have to pay.
You will find several letter templates on the following page. They provide a general structure that you have to complete with the information regarding your complaint.
Here again, a concise formulation restricted to what is relevant to your dispute is your best asset in your communication with the seller.
Alternative dispute resolution means out-of-court settlement. There are specific bodies for alternative consumer dispute resolution, going from the regular Ombudsman services to initiatives from the private sector. Some are free (such as Ombudsman services) while others ask for a small fee (dispute commissions and conciliation commissions). They are a valuable alternative to court action insofar as they can help you solve your guarantee dispute.
For guarantee disputes regarding mobile phones and smartphones, you can send your complaint to the Ombudsman Service for Telecommunications. Its intervention is free of charge. It acts as a mediator and gives an opinion, which is guiding but not binding. If your seller does not follow the Ombudsman’s opinion, a court action is your last option if you refuse to give up.
Two private bodies are active in the alternative resolution of consumer disputes concerning the purchase of goods (including guarantee issues): the reconciliation commissions for furniture disputes and for second-hand vehicles.
There are two requirements in both cases: the seller must have used the standard contract and the matter cannot be pending in court.
If you fulfil these criteria, you may send your complaint to the Furniture Disputes Commission (an initiative of NAVEM, the professional association of furniture merchants) or to the Second-Hand Vehicle Reconciliation Commission (an initiative of the professional association Federauto).
If the dispute concerns an important sum you can also appeal to a mediator registered with the FPS Justice. An independent third party (lawyer, solicitor, technical expert…) will then try to find a solution during a mediation mission. The cost of a mediation is determined by the usual fees.
An alternative dispute resolution procedure with a registered mediator is a valuable solution that can replace a standard court action. Both parties do have to accept to solve the issue in this way. Problems are also settled a lot faster, which makes it possible to maintain a good commercial relationship.
For more information on alternative dispute resolution and on its costs, you can consult BELMED, the online platform of the FPS Economy, on which you can also find an overview (with information pages) of the bodies that practice alternative dispute resolution for consumers.
If you have examined all means of out-of-court dispute resolution and have not found any solution, your last option is to go to court. You have to weigh up the sum involved in the dispute and the disadvantages of a legal procedure which is expensive, time-consuming and very formal. Moreover, there is absolutely no certainty that the outcome will be in your favour.
However, this is very often the only option if the adverse party sticks to their position and you refuse to give up.
You can contact the primary legal aid services (only available in French or Dutch) where lawyers can give you a first opinion (free of charge). They will not work on your behalf but will refer you to a legal adviser or another service to start the legal procedure itself. Legal Aid Commissions organise these information sessions in each judicial district. They are linked to the houses of justice.
An attempt at conciliation before the judge is in principle possible. It is not very expensive and does not require a lawyer. You simply have to send a unilateral request to the juge de paix of your domicile. Attempts at reconciliation for disputes above 2,500 euros should be sent to the tribunal de première instance.
The clerk of the court’s office will send a written notification to the other party. The conciliation procedure is always voluntary: if the other party does not want to take part in it, only the judge can give a verdict if you refuse to give up.. Download a template of request (DOC, 23.5 KB)
Attempts to solve a guarantee dispute amicably will often remain fruitless. If the seller’s refusal is justifiable, it does not make much sense to take other steps; but if you are in the right, maybe you can obtain satisfaction if you go to a judge.
You should contact a legal adviser for an assessment of the chances of success of a legal procedure as well as for an estimate of the possible costs. If the burden of proof lies with you, keep in mind that you may have to pay for a part (or even the entirety) of the costs of a (contradictory) analysis.
If you are certain of your case and refuse to give up, you will have to bring to the case before a judge: a juge de paix for disputes under 1,860 euros and a tribunal de première instance for cases involving a larger sum.
If your insurance covers legal expenses for contractual disputes, you can also rely on your insurer for legal aid in this context.
After any purchase, keep your receipt, or even better : photocopy it (the ink used on receipts sometimes fades away) and store it with the guarantee documents.
You can then use it later on to prove your purchase in the event of a dispute.