Whether “Three Guarantees” shall be applied to Premiums?

Miss. Zhang bought a TV set, the seller gave her a soymilk maker and a fan as premiums. On the same day, Miss. Zhang found there was something wrong with the soymilk maker, she asked the seller to replace. The seller explained that the premium was free, which was not the object of “Three Guarantees” (“TG”), so it could not be replaced. 5 days later, there was something wrong with the TV set, Miss Zhang asked the seller to return. However, the seller refused, he said that replacement should be applied in case both goods and premiums were returned. But Miss Zhang had used the fan, and there was something wrong with the soymilk maker, so Miss Zhang failed to return the premiums in the original status, and the seller could only replace or repair the TV set. Miss Zhang had no choice, but replaced one.

“TG” shall not be applied to Premiums? “Consumer Protection Law”, “Provisions on the Liability for the Repair, Replacement and Return of Some Commodities”, “Provisions on the Liability for the Repair, Replacement and Return of Household Audio and Video Commodities”, and other national regulations related to “TG” have not clearly defined that “TG” shall be applied to premiums. However, some local regulations, such as “Consumer Protection Provisions of Liaoning Province” and etc., have stipulated that “TG” shall be applied to premiums. In view of this, if there are no local provisions for some specific areas, then the consumers of these areas cannot protect their rights for premiums? The answer is No.
Firstly, in view of contract of sales, the consumer accepts the invitation of an offer provided by the seller, which says “give premiums based on the purchase”, this means both parties have agreed on the sales, and one of the seller’s responsibilities is delivering the qualified premiums. If there is any quality problem related to the premiums, and the premiums listed in the “TG” list, then the seller shall undertake the “TG” liabilities.

Secondly, in view of contract of donation, “give premiums based on the purchase” is different from the normal donation, because the consumer obtains the premiums by purchasing commodities, which is the “donation subject to collateral obligations” stipulated in Article 191 of “Contract Law”, it says “If the donated property under a donation subject to collateral obligation has defects, the donor shall, within the limit of the collateral obligations, bear the same liabilities as a seller.” According to this Article, even the defective premium does not belong to the object of the “TG”, the seller (donor) shall, within the limit of the collateral obligations, bear the same liabilities as a seller. Because the “Liability for Warrant of Defects” is one of seller’s liabilities, and the consumer shall be entitled to choose in a reasonable manner to demand that the seller bears the liability for breach of contract in such form as repair, replacement, redoing, return of the targeted matter, discount in payment or remuneration.

In addition, if the attached premium cannot be returned in its original status, whether the consumer can return the commodity? It depends. As we have mentioned, “give premiums based on the purchase” is part of the contract, where the consumer has to return the defective commodity, both parties shall go back to the original status. The seller shall refund, the consumer shall return the premium and commodity, because the precondition for the premium does not exist.

However, if the premium has been used and cannot be returned in its original status, the seller refuses to undertake the “TG” liability, which violates the relevant laws and regulations, and would not be supported by the relevant authorities in practice. Under such circumstances, normally, the relevant authorities would require the consumer to pay for the premium at its purchase price; where part of the commodities shall be returned, the premiums may be discounted according to the proportion.

For the consumer, when obtains premium, in order to avoid disputes related to premium, it would be better for the consumer to use the premium upon the expiration of the period for return agreed by both parties or regulated by the provisions of “TG “.