Warranty versus the seller's legal liability

What is the difference between a guarantee and the seller's liability?

The seller's liability under the law applies to every consumer sale; it does not have to be agreed. A consumer sale is the sale of a movable to a consumer by a seller who enters into the contract in the course of their business or profession (VÕS § 208 lg 4) [4].

• The seller is liable for a lack of conformity that exists when the goods are delivered to the buyer, even if it becomes apparent later (VÕS § 218 lg 1) [1].
• The liability lasts two years from delivery to the buyer (VÕS § 218 lg 2) [1].
• A lack of conformity that appears within one year is presumed to have existed at delivery, unless this is incompatible with the nature of the goods or the defect (VÕS § 218 lg 2²) [1].
• An agreement to the buyer's detriment made before the buyer reported the lack of conformity to the seller is void (VÕS § 237 lg 1) [2].

A commercial guarantee (müügigarantii) is a promise, on the terms set out in the guarantee or in advertising, to replace, repair or service the goods free of charge or for a fee, or to refund the price paid (VÕS § 230 lg 1) [3]. It may be given by the seller, an earlier seller or the producer (VÕS § 230 lg 1) [3]. The guarantee applies on the terms set out in the guarantee or in advertising and must put the buyer in a better position than the law does (VÕS § 230 lg 1) [3].

The guarantee must explain that the consumer is entitled to use the legal remedies against the seller free of charge if the goods do not conform, and that the guarantee does not affect this right (VÕS § 231 lg 1 p 7) [5]. The word "guarantee" may be used in connection with ensuring that goods meet the stated conditions only if its meaning corresponds to what the law provides on guarantees (TKS § 11) [6].

What must a guarantee contain?

In a consumer sale, a guarantee must state, in plain and intelligible language, among other things:

• the guarantor's name and address (VÕS § 231 lg 1 p 1) [5];
• the terms of the guarantee and how to use the rights under it (VÕS § 231 lg 1 p 3 ja 4) [5];
• an explanation of the consumer's legal rights against the seller (VÕS § 231 lg 1 p 7) [5];
• the list of goods the guarantee covers (VÕS § 231 lg 1 p 8) [5].

The guarantee must be given to the consumer at the latest on delivery of the goods, in writing or on another durable medium (VÕS § 231 lg 2) [5]. If the guarantor breaches these requirements, this does not exclude or limit the validity of the guarantee (VÕS § 231 lg 3) [5]. The procedure for exercising the rights under a guarantee must not be unreasonably burdensome for the buyer (VÕS § 230 lg 4) [3].

If the terms of the guarantee are less favourable to the consumer than those in advertising for the guarantee, the guarantee is binding on the advertised terms, unless the advertising was corrected before the contract was concluded in the same or a comparable way (VÕS § 231 lg 3¹) [5].

When does the guarantee period start and can it be extended?

• Start. The guarantee period starts when the goods are delivered to the buyer, unless the contract or the guarantee provides for a later start. If the seller has to send the goods to the buyer, the period does not begin before delivery (VÕS § 230 lg 2) [3].
• Suspension. The guarantee period is suspended while the buyer cannot use the goods because of a lack of conformity for which the guarantor is responsible (VÕS § 230 lg 2) [3].
• The legal period after repair or replacement. If the seller replaces the goods, the two-year period starts from delivery of the replacement; if the seller repairs them, the period starts again from the repair for the defect that was remedied (VÕS § 218 lg 3¹) [1].
• A producer's durability guarantee. If the producer offers a guarantee of durability for a certain period, the producer is liable to the consumer for repair or replacement for the whole period of the guarantee (VÕS § 231 lg 5) [5].

Does a guarantee cover damage caused by the buyer?

The Supreme Court (Riigikohus) has explained that although a guarantee must put the buyer in a better position, the absence of exclusions in the guarantee does not, as a rule, mean that the guarantor is liable for defects appearing after delivery that the buyer caused, for example by improper use; in a dispute, the guarantor may present evidence that the defects resulted from the buyer's actions (RK 2-21-13451/53) [7].

What the law says

• „Müügigarantiiga antakse ostjale seaduses sätestatust soodsam seisund.“ [3] (translation: a commercial guarantee puts the buyer in a better position than provided by law; VÕS § 230 lg 1) – a guarantee can only add to the rights under the law.
• „Müügigarantii ei välista ega piira ostja õigust kasutada muid seadusest või lepingust tulenevaid õiguskaitsevahendeid.“ [3] (translation: a commercial guarantee does not exclude or limit the buyer's right to use other remedies under the law or the contract; VÕS § 230 lg 5) – even if the guarantee has expired or its terms do not cover the defect, the remedies under the law remain, in a consumer sale the claim against the seller for a lack of conformity that becomes apparent within two years of delivery (VÕS § 218 lg 2) [1].
• „Müügigarantiist tulenevate õiguste teostamiseks ettenähtud kord ei tohi olla ostjale ebamõistlikult koormav.“ [3] (translation: the procedure for exercising rights under a commercial guarantee must not be unreasonably burdensome for the buyer; VÕS § 230 lg 4).

What to do

1. Work out what you can rely on: for a defect that appears within two years of delivery, you have a claim against the seller under the law (VÕS § 218 lg 2) [1]; during the guarantee period, also a claim against the guarantor, whose name and address must be in the guarantee (VÕS § 231 lg 1 p 1) [5].
2. Notify the seller of the defect within two months of learning of it (VÕS § 220 lg 1) [8]. If you do not notify in time, you cannot rely on the lack of conformity; if the failure to notify is reasonably excusable, you may still reduce the price or claim damages, except for loss of profit (VÕS § 220 lg 3) [8].
3. Make the complaint, preferably in writing: give your name and contact details, the date of the complaint, the date of purchase, the defect and your claim (TKS § 24 lg 3) [9], and refer to the document proving the purchase or the guarantee or attach a copy (TKS § 24 lg 4) [9]. If you were not given a proof of purchase in a form that can be reproduced in writing, the trader must provide it without delay at your request during the period in which the trader is liable for a lack of conformity or for conformity with the guarantee terms (TKS § 4 lg 6³) [10].
4. As a rule, first demand repair or replacement (VÕS § 222 lg 1) [11]; the seller bears its costs, including transport and postage (VÕS § 222 lg 4) [11]. If the seller has not completed the repair or replacement or has refused it, if the defect appears despite the seller's attempt to bring the goods into conformity, or if the lack of conformity is so serious that it justifies immediate withdrawal, you can withdraw from the contract or reduce the price (VÕS § 223 lg 1; VÕS § 224 lg 1) [12] [13].
5. The trader must answer a complaint made in writing or in a form that can be reproduced in writing within 15 days of receiving it, unless a law or an EU regulation sets another deadline (TKS § 24 lg 5) [9]. If the trader has not resolved the complaint in time, the trader is deemed to have refused your claim (TKS § 24 lg 8) [9]. If the trader refuses or you do not accept the solution, you can apply to the Consumer Disputes Committee (TKS § 46 lg 1) [14], where the proceedings are free of charge for the parties (TKS § 45 lg 4) [15], or to a county court (TKS § 24 lg 9) [9].

Frequently asked questions

The guarantee has expired, but the item broke within two years. Can I do anything?

Yes, if it was a consumer sale. The seller is liable for a lack of conformity that becomes apparent within two years of delivery (VÕS § 218 lg 2) [1], and the guarantee does not limit this right (VÕS § 230 lg 5) [3]. A shorter guarantee period does not shorten the liability under the law: an agreement to the buyer's detriment is void (VÕS § 237 lg 1) [2].

Whom should I contact – the seller or the producer?

Your legal remedies under the law are against the seller (VÕS § 231 lg 1 p 7) [5]. A claim under the guarantee can be made to the guarantor, who may also be an earlier seller or the producer (VÕS § 230 lg 1) [3].

Can a guarantee be paid for?

Yes. A commercial guarantee may be a promise to repair, replace or service the goods free of charge or for a fee (VÕS § 230 lg 1) [3]. The seller's liability under the law applies even without a guarantee (VÕS § 218 lg 2) [1].

I was not given a guarantee document. Is the guarantee valid?

The guarantee must be given at the latest on delivery, in writing or on another durable medium (VÕS § 231 lg 2) [5], but if the guarantor breaches this requirement, this does not exclude or limit the validity of the guarantee (VÕS § 231 lg 3) [5].

The advertising promised a better guarantee than the guarantee document. Which applies?

If the terms of the guarantee are less favourable than those in advertising for the guarantee, the guarantee is binding on the advertised terms, unless the advertising was corrected before the contract was concluded in the same or a comparable way (VÕS § 231 lg 3¹) [5].