INTRODUCTION

A commercial guarantee – in the sense of a voluntary service that may be offered by a seller, a producer or a third party in addition to the legal guarantee – can definitely have benefits for consumers. Such guarantees are commonly offered – an ECC-net survey found that 60 per cent of online offers referred to commercial guarantees – and an important percentage of consumers do buy commercial guarantees (oft en in the form of‘extended warranties’).

There are definitely potential benefits: the rights the consumer has under the legal guarantee can be extended; repair at the home of the consumer may be offered as well as a courtesy replacement product during examination or repair; the reversal of the burden of proof may be extended; the hierarchy of remedies may be waived, etc.

There are, however, also potential disadvantages. Costs may be involved to obtain a commercial guarantee and the benefits of such guarantee may vary considerably; long lists of exclusions may be involved; geographical limitations may be imposed etc. Another recurring problem is that the information provided may be limited to the commercial warranty and the consumer may be misled about his legal rights.

As such commercial guarantees are voluntary, the regulatory framework specifically with regard to commercial guarantees is thus far limited. This, however, does not mean that there are no tools to combat misleading or unfair practices and terms. Horizontal instruments like the Unfair Commercial Practices Directive and the Unfair Contract Terms Directive have proved useful in this regard.

This chapter focuses on the Proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods (ODSD Proposal) and the improvements it may bring in comparison to the existing legal framework.

We will therefore set out the current legislative framework and its evolution (Section 2). We will then briefly discuss the Apple case as this case is a clear illustration of the problems with commercial guarantees and the drawbacks and the limitations of the current legal framework (Section 3). We will finally analyse the proposed Article 15 ODSD Proposal, which regulates commercial guarantees (Section 4).