Stricter warranty obligations for webshops as of 1 June 2022!

Services enjoy warranty as well

In the past, sellers only had to give a legal two-year warranty on consumer goods (e.g. mobile phones, hoovers, furniture, clothing, etc.). On services and digital “goods”, however, there was no legal obligation to provide a warranty.

 

The following things will change as from 1 June:

1. In the future, a legal warranty obligation will also apply to “goods with digital elements”

But what does that mean? Let’s say you sell a tablet with an integrated operating system and standard apps. Previously, you only had to give a 2-year warranty on the tablet itself. As of now, this also applies to the “digital elements” that go with it, so also for the operating system and the accompanying standard apps. This extended warranty applies only to “digital elements” that are included in the initial purchase and not for software that is subsequently purchased separately. In addition to tablets, the new rules also apply to other digital products such as smartwatches, smartphones, home automation systems, smart TVs, laptops, GPS, etc.

2. In the future, “digital services or content” are also subject to a legal warranty obligation

Digital services are, for example, video on demand, streaming services, cloud storage services, … Digital content is, for example, computer programmes, apps, video, music and audio files, e-books, … Both are subject to the legal warranty obligation as of 1 June.

It is particularly important that this new warranty legislation also applies to free services or free digital content. All too often companies nowadays offer free services in exchange for contact details. Just think of white papers on websites or online contests, where you can participate for free in exchange for an opt-in for marketing purposes. GDPR and the anti-spam rules already try to put an end to these practices and this additional warranty obligation adds an extra element of protection for consumers to these already existing rules.

Sellers must provide updates 

As a seller, you are now also obliged to provide appropriate updates for the software or content that you sell or provide for free.  This applies both to stand-alone software or content and to software that is part of a hardware device (the operating system of our tablet in the example above). As a seller, you must ensure that the digital elements of the goods or services sold by you continue to function properly during the warranty period. 

As a seller, you must also inform the consumer about his/her right to these updates. You do this in your general terms and conditions.

The customer is always right: legal presumption of warranty

The new regulations do not change the minimum duration of the legal warranty, which remains 2 years.  But an important novelty is that any defect during those two years will be deemed to be covered by the warranty, unless proven otherwise. This makes a big difference with the former situation.  Previously, that presumption was limited to 6 months.  As of the sixth month, the consumer had to prove that he/she had not improperly used the goods. This proof is almost impossible for consumers to provide, so now a solution has been found: if a product breaks down within the first two years after purchase, it is automatically considered a warranty case, unless you, as the seller, can prove otherwise.

Warranty on second-hand goods: stricter information duty

In Belgium, a shorter warranty period of one year already applied to second-hand goods.  This will remain the same, but from now on the law requires the seller to explicitly inform the consumer about this shorter period. Make sure to do so, because if you fail to inform the consumer correctly, the warranty period will be extended to 2 years as a result.

Commercial warranty

In addition to the legal warranty, you can also provide additional or supplementary warranties. For example, you can extend the warranty period to three or four years, include certain services in your warranty, provide extra compensation in the event of damage or extend the warranty to B2B relations instead of just B2C. Such “commercial warranties” are a completely voluntary and commercial choice of you as a seller.

A few novelties can be found here as well:

• First of all, it is forbidden to present your warranty in your advertisements in a more attractive way than it is in reality (and in the small print of your general terms and conditions). This is misleading and for that reason it is now explicitly forbidden.
• The warranty conditions themselves are subject to strict rules as well. They must be written in clear, comprehensible and understandable language (that means in straightforward terms, but also in the language of the consumer). You must also explicitly point out that the legal warranty applies regardless of your additional commercial warranty. In addition, you must certainly mention your name and address, how the customer can make a claim under the warranty, the products covered by the warranty and any conditions the customer must take into account.

It’s time to update your general terms and conditions

The new regulations enter into force on 1 June 2022.  As a seller (on- or offline), you therefore have two months to amend your general terms and conditions and the information on your website.  Do not delay this unnecessarily.  The Economic Inspectorate is watching closely and it would be a shame to incur unnecessary fines.

Perhaps this is also the perfect moment to give your general terms and conditions a thorough facelift or to immediately re-arrange your entire webshop.  Please note that Sirius Legal can help you with this.  On our website you will find the “Contract Review” package with which we, for example, review and update your general terms and conditions. But be sure to check out the “Website Certifier” as well, with which we will review and maintain your entire website just as transparently. Such a Website Certifier also offers you 1 year of free membership to our partner SafeShops.be.  Isn’t that a nice bonus?