Monday March 01 2021
What To Do If A Consumer Good Fails?
January 4, 2018, you purchased a 60-inch HD 4K Television at your local electronics store. You paid $1000, plus taxes. The TV came with a 3-year manufacturer’s warranty. The salesperson offered you a 4-year extended warranty (for a total of 7 years) for an extra $250, but you decided not to take it.
For 3 years you are very happy with your new TV. However, on February 27, 2021, it stops working. You call the store and the manufacturer, but they both tell you that you are out -of luck, since the warranty has expired. You try to argue that your TV should have lasted longer than 3 years and 2 months, but they will not listen. You mention that they were willing to give you a 7-year warranty, but still they do not budge.
You call a local repair shop. Luckily, the repairman is reasonably priced. He quickly diagnosis the problem, that there is something wrong with the screen (for some technical, mumbo-jumbo reason that you do not really understand). He tells you that to replace the part will cost $650. He also tells you that, in his experience, with this kind of TV set, at that price point, the screen should have lasted 6 years, or at least 5. If it failed after 38 months, it was either somehow damaged during use, or it must have been defective.
Now you want to know if you can sue or if you will be stuck paying $650 to repair a $1000 TV set 3 years after you bought it, and 2 months after the warranty expired.
In the Civil Code of Quebec law, the seller of any property, new or used, has a legal obligation to warrant the buyer that the property, at the time of sale, is free of hidden defects which render it unfit for the use for which it was intended or so diminish its usefulness that the buyer would not have purchased it or would not have paid so much, if he had been aware of the defect. By contract, parties can reduce or even eliminate this warranty.
However, the rule is different for consumer goods. Under the Consumer Protection Act, goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regards to their price, the terms of the contract and the conditions of their use. This rule is mandatory and cannot be excluded by the merchant or the manufacturer, and the consumer can sue either of them.
In practice, however, there may be obstacles to exercising that right. Whatever the good, whether it is a car or a high-end TV, the consumer will have to prove that it was defective or did not endure for a reasonable length of time. In essence he will need an expert witness to testify that the consumer good did not last as long as it should have, given its price and the conditions of use.
The manufacturer or seller can also try to defend, either because they may try to prove that the product lasted beyond the “reasonable length of time” or the consumer used it abnormally, or some outside factor unrelated to the product itself caused its failure.
Without expert witness, judges will not take it upon themselves to say how long a consumer good should last. For expensive goods like automobiles, it may be worth it to bring in an expert witness to win such a lawsuit. For less expensive products, the cost of such expert witnesses may be out of proportion to the amount to be won in court, although, if you win, you may be reimbursed the cost of the expert witness.
Lawyers often say that the worst settlement is better than the best judgment. If you do sue to get back the $650 you spent to repair your TV, you may very well eventually win in Small Claims Court. You will likely spend between a year and 2 years waiting for the judgment. You will miss 1 day at work to go to court. You will have had to pay an expert witness to write a report and perhaps testify. You will live with the uncertainty because when you start out there is no guarantee you will win. Perhaps the TV manufacturer’s expert is of the opinion that anything beyond 3 years is a bonus and perhaps the judge will agree.
In this case, we might consider the extended warranty at $250 as the “settlement.” Some might think extended warranties are a scam. However, they may also be thought of as the price of certainty that the repair cost is covered if the product fails earlier than it should. Otherwise, you are gambling that if, the product fails early, you can convince the store or the manufacturer to fix it anyway or that you can win it court.
There is a certain manufacturer’s cynicism at play here because they know that many consumers will not spend time and effort to exercise the legal warranty under the Consumer Protection Act. Like many other legal rights, this right is only worth what a person invests in effort, time and money to exercise the right.
To know your rights and remedies with regard to purchases of consumer products, please speak to your attorney.
Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.
This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.