You just bought a laptop two weeks back.
But now the battery is emitting smoke and your hard disk has caught fire. Plus, you have an ugly burn mark left on your legs!
And, all this despite the fact that the seller had guaranteed you that the laptop was in good condition and that he would give you your money back if it was not!
Well, luckily in Malaysia, there are 3 POSSIBLE WAYS for you to take.
You can assert three different claims against the seller and manufacturer as provided under the Malaysian law: product warranties, guarantees and liabilities.
Now, it’s important to note that all three are usually categorized under “warranty”. But from the legal perspective, there are some differences between them.
Trader’s liability under the law of supply of goods or services in Malaysia is generally governed by two legislation, namely the Sale of Goods Act 1957 (“SOGA”) and Consumer Protection Act 1999 (“CPA”).
Both legislation provide for the obligations of the seller and the rights of the buyer.
Warranties in the legal sense are optional obligations of the seller, which is why he – aka The Seller – can formulate them the way he wants.
These are usually terms that are expressly stated in the contract between the seller and buyer. These terms can be made orally, in writing or by way of advertisement. Therefore, any statement made by the seller becomes an express warranty, especially if the buyer relies upon it to purchase the product. The seller is legally obliged to fulfil his warranties should the buyer decide to claim for the warranties.
Some common examples of product warranties are such as limited, extended or lifetime warranty period, money back or satisfaction guarantee, insurance coverage, etc.
The seller would also set out under what type of conditions the product can be returned, replaced or repaired, and cases in which the seller would not be liable for. Consumers are advised to read the product warranties carefully, as those fine print can often contain some pitfalls, and that certain things are excluded from the warranties.
For example, the seller may provide warranty for the battery but not for the hard disk; or that labour, transport or spare parts charges would have to be borne by you.
Certain product warranties contain a clause which states that;
“This warranty becomes null and void if any sticker is tampered with; or if the damage is caused by misuse, abuse or accident; the attachment of any unauthorized accessory; alteration to the product; improper installation, etc.”
Therefore, you have to ensure that the product is not tampered with, either by yourself or by anyone else. Also, please do keep the warranty card and the receipt of purchase. This is to help the manufacturers keep track of the product and to keep them informed of the expiry date of the warranty.
Guarantees are rights given to consumers under the law, and they are referred to as implied warranties. An implied warranty is based on an assumption that there is an understanding of some sort of guarantee between buyer and seller.
Under implied warranties, the warranty is based upon the buyer’s reasonable expectations about the products. When the warranty is breached, the seller must either repair, refund or replace the product.
When a buyer purchases a product, there is an implied warranty that the product must be of acceptable quality, unless the seller makes it clear to the buyer that the product is sold on an “as is, whereas” basis or “with faults”.
A product will be considered to be of acceptable quality if it is:
- Fit and suitable for all the purposes for which the product is commonly used;
- Acceptable in appearance and finish;
- Free from minor defects;
- Safe; and
Hence, when a buyer purchases a laptop, he is under a reasonable expectation that the laptop will be of acceptable quality within a reasonable period of time. If the laptop explodes without default, negligence or omission on the part of the buyer, that laptop is not of acceptable quality.
There is also an implied warranty that the product will be;
- The same as the description or sample was shown to the buyer;
- That the product will be fit for a particular purpose when a buyer relies upon the seller to choose the product to fit a specific request;
- The seller has the right to sell the product and when the ownership of the product passes to the buyer, the buyer has the right to possess the product free from any interference;
- Where the price for the product is not stated in the contract, the buyer is expected to only pay for the reasonable price of the product; and lastly,
- The seller and manufacturer have an obligation to ensure that they provide repairs and spare parts for a reasonable period of time after the product is sold.
Referring to the horror scenario above, what remedies do you have in the event you have suffered personal injury caused by a defective product?
Under the law, any person (including non-buyer) who suffers death or personal injury caused by a defective product, or his property is damaged by the defective product, can claim for compensation from the manufacturer directly.
It is logical that a manufacturer should be made liable for defective products because (a) they manufacture the products and (b) they have control over the quality and safety of them.
Liability can be imposed without a contractual relationship and proof of fault.
In addition to suing the manufacturer under breach of an implied warranty under product safety, a buyer may also sue the manufacturer for breach of contract and breach of duty of care under the tort of negligence.
The CPA, being a piece of legislation enacted to protect the consumers’ rights and interests, states it clearly that the provisions under the CPA cannot be contracted out.
In other words, traders cannot, by way of limitation or exclusion clauses, seek to limit or exclude their liabilities under the law.
So the next time anything like this happens to you, here’s how you can solve your problem.
First, go back to the seller and ask for a repair, refund or replacement of the product. If the seller refuses to resolve the problem, then you may file a complaint with the Consumer Claims Tribunal for claims below RM25,000.
You can also file a complaint with SIRIM, who is empowered to take action against certified companies on faulty certified products. Therefore, you are encouraged to purchase products which have been certified by SIRIM QAS International, as all products certified by SIRIM means they comply with international and national standards. Plus this would mean that the factory has a proper quality control system to ensure consistent and continuous compliance with the standard.