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Case Details

Case Details
National ID link
Member State Malta
Common Name Magro v Domenic Department Stores
Decision type Administrative decision in appeal
Decision date 01/04/2016
Court Court of Appeal (Civil, Inferior)
Subject
Plaintiff Polly Anne Magro
Defendant Dominic Department Stores (DDS) Limited u Noel Gauci ezercenti l-kummerc Gava Interiors
Keywords attributes of the trader, commercial guarantee, consumer rights, intermediary, liability, nature of the trader, seller

Consumer Sales and Guarantees Directive, Article 4 Consumer Sales and Guarantees Directive, Article 5, 1.

(1) The two year time period laid down in Article 78 of the Consumer Affairs Act, which implements Article 5 (1) of Directive 1999/44/EC into Maltese law, is a period of forfeiture not a period of prescription.
The plaintiff instituted a case in the Consumer Claims Tribunal following the purchase and installation of a solar water heater from the defendant, which turned out to be defective while still under the 5-year guarantee. The defendant in turn claimed that this was merely an agent acting on behalf of Gava Interiors Company Limited. The latter claimed that there was no juridical relationship between it and the plaintiff, that it was DDS Ltd who had carried out the installation improperly and that Gava Interiors had provided a temporary remedy for the plaintiff. The Tribunal found for the plaintiff, ordering the defendant to pay back the full value of the solar water heater in return for the defective object; and the defendant appealed on the same grounds.
The court rejected the claim by the defendant that the prescription period during which the plaintiff had to first raise an objection, had expired. The reasoning was based on the change in the wording of the law in Article 78 of the Consumer Affairs Act, which implements Article 5 (1) of Directive 1999/44/EC into Maltese law, which previously contained a specific mention that the 2 years during which the plaintiff may detect the defect in an object, is a prescriptive period.

The court also rejected the claim by the defendant that Gava Interiors should have been accorded part of the fault, since the plaintiff had dealt only with DDS Ltd.
(1) Is the two-year period under Article 78 of the Consumer Affairs Act, which implements Article 5 (1) of Directive 1999/44/EC into Maltese law, a period of prescription?
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The defendant's appeal was rejected and the appealed decision was confirmed by the court.