I receive a different sofa than the one chosen: what are my rights?

The lawyer Vincenzo Liguori, specialized in civil liability, professional liability and compensation for damages, answers. Author of Giuffre Francis Lefebvre

Dear reader, it must be premised that the question posed is partially incomplete, as it does not provide decisive information in itself: it does not specify whether the purchase in question was made as a consumer (i.e. as a natural person acting for purposes unrelated to any entrepreneurial, commercial, craft or professional activity carried out) or not.

However, from the type of goods purchased, it can be reasonably assumed and inferred that you acted as a consumer and, therefore, I will focus more on the legislation applicable to the contract in question governed by the Consumer Code.

Indeed, the Consumer Code, in title III, entitled “legal guarantee of conformity and commercial guarantees for consumer goods”, in chapter I, entitled “of the sale of goods”, regulates certain aspects of the sales contracts concluded between the consumer and the seller, including:

• the conformity of the goods to the contract;
• remedies in the event of a lack of conformity;
• the methods of exercising these remedies and the conventional guarantees.

Article 129, in particular, provides that the seller must supply the consumer with goods that conform to the one referred to in the sales contract, both from a subjective and an objective point of view.

The subjective requirements are reported in paragraph 2 of the article in question, which expressly provides that the goods supplied must:

• correspond to the contractual description, type, quantity and quality and possess the functionality, compatibility, interoperability and other characteristics as stipulated in the sales contract;
• be suitable for any particular use desired by the consumer, which was brought to the attention of the seller at the latest at the time of concluding the sales contract and which the seller accepted;
• be supplied together with all the accessories and instructions, including those relating to installation, provided for in the sales contract;
• be supplied with updates as stipulated in the sales contract”.

The objective requirements, however, are reported in paragraph 3 of the article in question, which, as far as is concerned here, provides that the goods supplied must be suitable for the purposes for which goods of the same type are normally used, must possess the quality and correspond to the description of a sample or model that the seller has made available to the consumer before the conclusion of the contract.

Article 133 of the Consumer Code provides that the seller is liable to the consumer for any lack of conformity existing at the time of delivery of the goods and which occurs within two years from that moment.

The action aimed at asserting the defects not fraudulently concealed by the seller is prescribed, in any case, within the term of twenty-six months from the delivery of the goods.

Article 135 bis of the Consumer Code provides that, in the event of a lack of conformity, the consumer has the right to restore, without charge, the conformity of the goods by repair or replacement (provided that the chosen remedy is not impossible or, compared to the alternative remedy, does not impose disproportionate costs on the seller), or to an adequate price reduction or termination of the contract. However, the same article, in paragraph 5, provides that the consumer has no right to terminate the contract if the defect is minor.

In your case, having found that the sofa supplied does not comply with the one indicated in the sales contract as it has a different color from the one chosen, considering that this defect could be considered minor – by virtue both of what you have stated and of what was stated by the Supreme Court of Cassation (judgment of 06/03/2020, number 10456) – you, if you have not yet done so, must formally report the defect to the seller (preferably by certified email or registered letter with return receipt, to have proof of the report) and make the purchased sofa available to the latter; the seller, in turn, will have to provide, free of charge and within a reasonable time, the replacement of the sofa or any reduction in price, proportional to the decrease in value of the goods received, where he proves that the requested remedy involves high costs.

Where, on the other hand, you had not acted as a consumer (but, for example, as the owner of a sole proprietorship and/or as the legal representative of a company), the ordinary civil legislation will apply to the sales contract in question and, in particular, the provisions of the Civil Code referred to in articles 1490 and following will apply.

Article 1490 of the Civil Code, indeed, expressly provides that the seller is required to guarantee that the thing sold is free from defects which make it unsuitable for the use for which it is intended or appreciably reduce its value. The buyer must notify the seller of the defects within eight days of discovery, at least if the seller has already acknowledged or concealed them.

In any case, the action lapses one year after delivery.

In the event of defects in the goods sold, the buyer, where the goods sold present imperfections such as to make it unsuitable for the use for which it is intended, may request the termination of the contract, otherwise the reduction of the price.