Section 59 ACL express warranties: when a warranty is a guarantee

Under section 59 of the Australian Consumer Law (ACL), keeping an express warranty is itself a consumer guarantee, owed by the manufacturer or seller that gave the promise.

If the goods may be unsafe (electrical, gas, a vehicle, a child's product), stop using them, get them checked, and look for a recall on the ACCC's Product Safety recall search before you do anything else.

Quick answer

Who made the promise decides who you claim against. Section 59 creates two separate guarantees, and they lead to different remedies:

• A warranty given by the seller (section 59(2)). If the business that sold you the goods made the promise and doesn't keep it, you have the ordinary goods remedies against that seller under section 259. For a major failure, or one that can't be remedied, that may mean rejecting the goods for a refund or a replacement of the same type and similar value if reasonably available (your choice, under section 263), if the right to reject hasn't been lost under section 262.
• A warranty given by the manufacturer (section 59(1)). This guarantee binds only the manufacturer. You can't reject the goods or demand a refund, repair or replacement from the seller because the manufacturer broke its warranty. Your remedy is a damages claim against the manufacturer under section 271(5), measured under section 272. The action must start within 3 years after you first became aware, or ought reasonably to have become aware, that the guarantee wasn't complied with (section 273).

Both guarantees apply only where you acquired the goods as a consumer under section 3 of the ACL, from a business supplying in trade or commerce, and not by sale by auction.

First, ask whoever gave the warranty, in writing, to honour it. If that fails and the goods are faulty, a claim against the seller under the acceptable quality guarantee (section 54) may be the stronger route.

What the law actually says

What counts as an express warranty

The ACL's definitions section gives "express warranty" a wide meaning. It is an undertaking, assertion or representation that:

• relates to the quality, state, condition, performance or characteristics of the goods; or to services or parts that are or may at any time be required for the goods; or to the future availability of identical goods, or of goods forming part of a set the goods belong to;
• is given or made in connection with the supply of the goods, or with the promotion by any means of their supply or use; and
• has a natural tendency to induce people to acquire the goods.

A warranty card is one example; a statement on packaging ("waterproof to 50 metres"), a website claim, an advertisement or a salesperson's undertaking may also qualify, depending on what was said and in what context.

The two guarantees

Section 59 of the ACL provides that where goods are supplied in trade or commerce to a consumer, other than by sale by auction:

• section 59(1): there is a guarantee that the manufacturer will comply with any express warranty given or made by the manufacturer in relation to the goods; and
• section 59(2): there is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.

"Manufacturer" is defined broadly. It includes a business that makes or assembles the goods, one that holds itself out as the manufacturer, one that puts its name or brand on the goods, and an importer where the actual maker has no place of business in Australia.

Remedies when the seller breaks its own warranty

A breach of section 59(2) is a failure of a guarantee covered by section 259, so the goods remedies apply against the seller.

If the failure is major, or can't be remedied, you can reject the goods (if the right to reject hasn't been lost under section 262) and choose a refund or a replacement of the same type and similar value if one is reasonably available (section 263). Alternatively, you can keep the goods and claim compensation for any reduction in their value below the price paid or payable (section 259(3)(b)). Whether a failure is major is decided under section 260.

If the failure isn't major and can be remedied, you can require the seller to remedy it (section 259(2)(a)). The seller gets the first reasonable opportunity to do so within a reasonable time, and chooses only how: repair, replacement with goods of an identical type, or refund (section 261). If it refuses, or doesn't remedy the failure within a reasonable time, you can have it fixed elsewhere and recover all reasonable costs of doing so, or reject the goods (subject to section 262).

You can also claim other loss suffered because of the failure that was reasonably foreseeable (section 259(4)). That applies only if you can evidence the loss, took reasonable steps to limit it, and don't claim the same loss twice.

Remedies when the manufacturer breaks its warranty

Section 259(1)(b) expressly excludes sections 58 and 59(1) from the remedies against the seller.

Instead, an "affected person" (the consumer, a later owner who didn't buy to re-sell, or someone deriving title through the consumer) can sue the manufacturer for damages under section 271(5). Under section 272, the damages cover:

• any reduction in the value of the goods below the lower of the price paid or payable and the average retail price at the time of supply; and
• other loss suffered because of the failure that was reasonably foreseeable. The cost of inspecting and returning the goods to the manufacturer counts as foreseeable loss. The same conditions apply: evidence, reasonable steps to limit the loss, and no double recovery.

Two limits matter:

• Section 271(6). If you required the manufacturer, under its express warranty, to repair or replace the goods, you can't sue under section 271(1), (3) or (5) for the reduction-in-value damages (section 272(1)(a)) unless it refused or failed to remedy the failure, or didn't do so within a reasonable time. Claims for other foreseeable loss aren't affected.
• Section 273. The action must start within 3 years after the day you first became aware, or ought reasonably to have become aware, that the guarantee wasn't complied with.

A warranty that promises parts or servicing will be available is also an express warranty. It overlaps with section 58, under which the manufacturer must take reasonable action to ensure repair facilities and parts are reasonably available for a reasonable period. Section 58 doesn't apply where the manufacturer took reasonable action to ensure you were given written notice, at or before you agreed to the supply, that they wouldn't be available (or not after a specified period); our section 58 guide has more. Like section 59(1), section 58 binds only the manufacturer and is enforced through section 271(5).

Warranties against defects

Section 102 deals with "warranties against defects": a representation communicated to you at or about the time of supply that someone will repair or replace the goods, provide again or rectify services, or wholly or partly recompense you if they are defective, including any document evidencing it. The regulations require the document to be transparent; to include prescribed text about the consumer guarantees; to prominently give the warrantor's name, business address, phone number and any email address; and to state what the warrantor and you must do for a claim, the period in which a defect must appear, how to claim (including where to send it), who bears the cost of claiming, and that the warranty is in addition to your other legal rights (ACCC guidance). Giving a consumer a non-compliant warranty document contravenes section 102(2). That contravention is separate from a failure to honour the promise: regulators enforce it, and it doesn't itself give you the section 59 remedies, though damages under section 236 may be available if it caused you loss. A typical manufacturer's warranty card is likely to be both a warranty against defects and an express warranty.

A warranty can't shrink your guarantees

Under section 64, a contract term is void to the extent it purports to exclude, restrict or modify the guarantees or the remedies for breaching them. For goods or services not of a kind ordinarily acquired for personal, domestic or household use, section 64A allows the supplier's contract to limit its liability: for goods, to repair, replacement or equivalent goods, or their cost (but not for the title guarantees in sections 51 to 53); for services, to supplying them again or the cost. That limit doesn't apply if the consumer shows reliance on it isn't fair or reasonable, and it concerns only the supplier's own contract: a contract term can't exclude or limit the manufacturer's liability under the manufacturer damages provisions (section 276).

Telling you the warranty is your only right, or that it has expired so you have no rights, can be a false or misleading representation about guarantees or remedies under section 29(1)(m). Falsely or misleadingly suggesting you must pay for an extended warranty that is wholly or partly equivalent to rights you already have may breach section 29(1)(n).

When this applies (and when it doesn't)

Section 59 is likely to help when:

• You acquired the goods as a consumer under section 3 of the ACL. That means the amount paid or payable did not exceed $100,000, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, or they are a vehicle or trailer acquired mainly to transport goods on public roads. Any one limb is enough. For goods, section 3 excludes goods acquired to re-supply, or to use up or transform, in trade or commerce, in production or manufacture, or in repairing or treating other goods or fixtures on land. Check how section 3 applies to you.
• The goods were supplied in trade or commerce. This includes most sole traders, but not a genuine one-off private sale.
• The promise fits the definition. Vague sales talk may not have the character of an undertaking, assertion or representation about the goods. A promise that falls outside the definition may still be a contract term, or a misleading representation under sections 18 and 29.

It generally won't help when:

• The goods were bought by sale by auction conducted by the seller's agent. Section 59, like sections 54 to 58, doesn't apply to those sales. Not every online "auction" is a sale by auction in this sense.
• The promise was about a service you bought on its own. The express warranty definition relates to goods (including services required for the goods). Promises about services are dealt with through sections 18 and 29 and the services guarantees, with remedies under sections 267 to 270.
• Your claim falls outside the warranty's own terms. Complying with a warranty means doing what it promised, conditions included. A manufacturer may be entitled to decline a claim genuinely outside the warranty's terms, though conditions are read in context and an unfair term in a standard form consumer contract is void (section 23). Either way, your separate rights against the seller under sections 54 to 57 remain.

The warranty expiring doesn't end those other rights. Durability under section 54 takes account of representations by the supplier or manufacturer (section 54(3)), so a long warranty can support an argument about durability. Our section 54 guide has more.

What to do today

1. Find the exact warranty wording and who gave it. Check the packaging, warranty card, product page, advertising, emails and the terms that applied when you ordered. A retailer's own "we'll replace it" promise falls under section 59(2); a brand's warranty falls under section 59(1).
2. Gather proof of purchase. A business can reasonably ask for it, but a receipt isn't the only proof: a bank or card record may be enough if it identifies the business, the transaction and the goods. For supplies of $75 or more (excluding GST), the supplier must give you a proof of transaction (section 100).
3. Document the fault. Take photos or video, note the date you first noticed the problem, and keep a record of how you used the goods.
4. If the cause is disputed, get an independent written report. A report on the cause, repair cost and effect on value may help.
5. Before handing over a device, back up your data and read the repair notice. A repairer must give you any required repair notice when it accepts goods for repair, for example where the goods can store user data or refurbished parts may be used (section 103).
6. Write to whoever gave the warranty. Quote the promise, describe the failure, cite section 59(1) or 59(2), and say what you want. If the goods are also faulty, write to the seller too, citing section 54. Set a deadline, such as 14 days (a practical default, not an ACL requirement).
7. Keep a record of any warranty repair or replacement request. It matters under section 271(6) if you later sue the manufacturer: note dates, job numbers and how long it took.
8. As a secondary option, ask your card issuer about a chargeback, or your buy now pay later provider about its dispute process. Warranty problems often arise long after payment, and these time limits follow the card scheme's or provider's rules, not the ACL. There's no chargeback right for change of mind, and one isn't guaranteed.

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What if the business refuses

If the seller says "take it up with the manufacturer". That answer doesn't deal with your rights against the seller under sections 54 to 57, or with a warranty the seller gave itself. If the only failure is a manufacturer's warranty breach, though, the claim does belong against the manufacturer.

If the manufacturer refuses. You may be able to claim damages under section 271(5) within the section 273 time limit. If the goods also weren't of acceptable quality, section 271(1) may support a separate claim against the manufacturer, and if they don't match a description applied by or on behalf of the manufacturer, or with its consent (for example, on the packaging), section 271(3) may too. The acceptable quality claim isn't available where the failure was caused only by an act, default, omission or representation of someone other than the manufacturer or its employees or agents, by a cause independent of human control after the goods left the manufacturer's control, or by the seller charging more than the manufacturer's recommended retail price or the average retail price (section 271(2)); the description claim has only the first two of those defences, without the representation limb (section 271(4)).

Your escalation options are:

• Your state or territory consumer protection body. It may help, for example by contacting the business or conciliating, if your complaint meets its criteria. Most expect you to have tried to resolve the matter with the business first, and eligibility rules vary by state and dispute type (in the ACT, for example, statutory conciliation applies only where the remedy you seek is worth $5,000 or less). These bodies don't make binding orders in ordinary consumer disputes and can't make the business settle. Contact details are at /agencies.
• A tribunal or court with jurisdiction. In NSW, Victoria, Queensland, the ACT and the NT, a tribunal (NCAT, VCAT, QCAT, ACAT or NTCAT) hears many consumer claims within its limits. In Western Australia, South Australia and Tasmania, ordinary consumer claims go to the Magistrates Court. Jurisdiction depends on each forum's enabling legislation, the type of claim and the amount, so confirm the forum and its current thresholds on the official site before filing. A dispute between individuals resident in different states may need a court rather than a tribunal. You can usually run a claim without a lawyer, though some forums restrict legal representation (QCAT, for example, requires permission). Check current filing fees on the official site, and ask about fee exemptions, waivers or deferrals if cost is a concern. Our guide to choosing the right tribunal or court has more.
• The ACCC. The ACCC investigates systemic conduct rather than individual disputes, so it won't resolve your claim. Reporting misleading warranty claims can still be worthwhile.

Common mistakes

• Demanding a refund from the seller over a manufacturer's warranty. Section 59(1) failures can't support rejection or refund against the seller. Frame any seller claim under the guarantee that actually applies, usually section 54.
• Losing the right to reject by delay or action. Under section 262, you can't reject goods if the rejection period has ended (the period from supply within which it would be reasonable to expect the failure to become apparent, having regard to the type of goods, their likely use, how long they can reasonably be used and the amount of use); you have lost, destroyed or disposed of them; they were damaged after delivery for reasons not related to their state or condition at supply; or they have been attached to, or incorporated in, any real or personal property and can't be detached or isolated without damaging them.
• Assuming there's no deadline. The ACL has no single warranty-style expiry for the guarantees, but limitation laws and forum rules apply. Manufacturer claims carry the 3-year limit in section 273.
• Believing "warranty void" claims. A broken seal or a third-party repair doesn't automatically end your consumer guarantee rights.

Related reading

• Consumer guarantees vs warranties: what's the difference?
• Section 54 ACL: acceptable quality explained
• Business refused your refund? Here's what to do next
• Section 58 ACL: the guarantee of repairs and spare parts
• Phone broken after the warranty ended? Your rights

This article is general information about Australian Consumer Law, not legal advice. It also touches on complaint and escalation pathways (state and territory consumer bodies, tribunals and courts, the ACCC including its Product Safety recall information, card chargeback rules and buy now pay later providers' dispute processes) and limitation laws, whose scope, rules, thresholds and processes sit outside the ACL or can change. Confirm the current position with the relevant body before lodging. For advice on your specific case, see your state or territory consumer body — full list at /agencies.