Shortchanged by the warranty

Tiro Ramatlhatse

What happens when goods fail within six months of purchase and are then replaced under the CPA? Picture: Tiro Ramatlhatse

Here’s a question which has sparked many a debate: if you have a item replaced under warranty, does the replacement item come with a full warranty, or the balance of the warranty of the item it replaced?

For years it’s been standard practice for the replacement to “inherit” the balance of the original, failed item’s warranty, which has irked consumers, who expect the replacement to have the same warranty as the original.

For example, a reader wrote to me recently about his geyser issue.

He’d had a new geyser installed in March 2010 as a replacement for a geyser – originally installed in 2006 – which had failed during its five-year warranty period.

“Apparently,” he told Consumer Alert, “when a geyser is replaced under warranty, a code is written on the cylinder to indicate the date of installation, as well as the date of the original installation.

“According to both the plumber and the insurance assessor, the five-year warranty period runs from 2006 to 2011.

“The fact that the geyser was replaced under warranty in 2010 is irrelevant to them.

“The bottom line is that I received no five-year guarantee for the geyser installed in March 2010, and as the five-year warranty on the original geyser expired in 2011, I now have to pay… for a new geyser”.

To him, this was “legal trickery at best – after all, there is a huge sticker on the geyser which says “five-year warranty when installed by a qualified technician”.

Just after the Consumer Protection Act (CPA) came into effect last April, I received an e-mail from a woman who’d bought an iron, which came with a one-year guarantee.

Five months later, it stopped working.

“So I took it back to the supermarket and they gladly swopped it for me, but they put the new iron into the old box with the date I bought the original iron on it. This confuses me because it is a brand new iron, but only guaranteed for the next seven months.

Stamped

“Should they not have stamped the new box with today’s date to give me the full year’s guarantee?”

And then last week, Viv Menhard posed the same question, hypothetically, in his case.

“If I buy a product that turns out to be faulty within the CPA’s six-month ‘implied warranty’ period, say, after four months, and I return it for a replacement, would the replacement then have a new six-month return policy, or would there only be the balance of two months?”

So I thought it was time to seek a legal opinion on this issue, specifically pertaining to cases where goods fail within six months of purchase and are then replaced, given that this period now falls under the CPA when it comes to remedies for defective goods.

Tarah King, of the Cape Town-based consumer law firm Robertson Teuteberg Kirk, obliged.

“We are of the view that the answer to this question can be found in section 46 (2) (a) of the CPA, which deals with substitution of goods,” she said.

“The replacement of defective goods, in our view, clearly constitutes substitution.”

And that section states that the substituted goods will be governed by the same terms and conditions as that which governed the transaction of the original defective goods.

“From the date of delivery of the substituted goods, the transaction applies to the substituted goods rather than the goods originally described.”

What this means, King says, “is that the replaced goods, like the original defective goods, will come with a full six-month CPA implied warranty, which comes into effect from the date of delivery of the substituted goods”.

An additional argument could be made that the replacement of goods constituted an exchange, which fell within the definition of “supply”, she said.

“It is a requirement that there be a ‘supply’ of goods in order for the six-month CPA warranty to come into effect.”

But, like so many other aspects of the CPA, this one remains open to interpretation until the Consumer Tribunal or a court makes a finding in this regard.

“We are of the view, particularly having consideration for the argument based on substitution, that all replaced goods should come with a six-month CPA implied warranty as afforded in terms of section 56,” King said.

Remember, if an item fails more than six months after purchase, and is replaced under warranty, the CPA doesn’t apply.

If you’ve recently had the “balance of warranty” applied to an item which was replaced within six months of purchase, please let me know.