Trading Standards vs incarexpress.co.uk

mdbarber wrote: »

All you wise guys seem to be forgetting that the judge has had a statement of case on his desk for several months stating quite explicitly the above details and he hasn't thrown it out as is within his power!,
So all in all T.S. think I have a solid case, a judge doesn't think I don't have a case... any more inept comments? without substance

You actually make me laugh; just because someone disagrees with you they are a 'moron', 'inept' or other. Make sure you keep this up in court, I honestly mean that!

Have some substance, there were two trips to court to send the greedy claimant packing on the case I was involved with. He was 'morally' and 'ethically' right in his own world, 'bordering on the libelous' in his correspondence (to me and other colleagues by name).

He lost....

and he lost at the stage in the case we never anticipated, we believe it was the right result for the wrong reason; but we're not complaining.

I see a few parallels here.

cavycrazy wrote: »

You can say you rejected the thing under the SOGA until you're blue in the face - fact is you agreed when you bought it that if it was faulty, YOU would return it for testing at your expense.
...
T's&C 's - they're not just for the intellectuals.

Not wishing to defend the OP's case, but SOGA in relation to consumer contracts does give consumers rights which cannot be taken away by T&Cs, even if you do agree to them.

A warranty is in addition to your statutory rights and does not replace them.

mdbarber wrote: »

well thats hardly the bottom line now is it?, once again for the slower folk out there Section 36 of the SOGA (As Amended) states as such

But section 36 needs to be read with section 35 that defines acceptance -

(1) The buyer is deemed to have accepted the goods subject to subsection (2) below—
(a) when he intimates to the seller that he has accepted them, or
(b) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.
(2) Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose—
(a) of ascertaining whether they are in conformity with the contract, and
(b) in the case of a contract for sale by sample, of comparing the bulk with the sample.
(3) Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.

Now the question is, whether installing the item in the car goes beyond 'examining them'. I am sure that the OP will argue that it does not (how will I know it works, etc).

However you are only examining them to confirm that they are 'in conformity with the contract'. I believe that installing goes way beyond what is strictly necessary to do that, and the examination would reasonably be limited to what you could do if you were stood in the shop with the goods on the counter. So I consider the OP will lose their case if they are arguing that they have not accepted the goods.


Moving on to section 36

36 - Buyer not bound to return rejected goods

Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.


Section 36 contains no clause that prevents a consumer agreeing to this section. So if the retailers T&Cs say that rejected goods must be returned, rather than just telling the retailer that you have rejected them, then you must return them. If it doesn't then the retailer must arrange to collect them. Obviously in relation to consumer contracts there is now some cross over in the legislation with the Distance Selling Regulations.

In-Car Express T&Cs have a section 'Cancellation, Warranty and Returns'

Cancellation describes the procedures to be followed under the Distance Selling Regulations, which includes the fact that the goods must be returned at the buyers expense, unless the goods were incorrectly supplied.

Warranty sets out the warranty terms, but as I have already mentioned a warranty is in addition to statutory rights and does not replace them, so this section is not relevant.

Returns sets out the procedure for returns, but does not explicitly state that where acceptance of goods is refused, then they must be returned.


Although the T&Cs are not well written, even if the OP wins their 'not accepted' argument (which they won't), I believe that the T&Cs are clear enough that they will lose if they try to argue that they had not agreed to return them if they were not in conformity with the contract.


And the stupid thing is, the OP is entitled to a refund on the postage costs of the goods if they are faulty and returned under section 48 of SOGA, a right which cannot be removed by T&Cs.

Altarf wrote: »

...............

36 - Buyer not bound to return rejected goods

Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.


Section 36 contains no clause that prevents a consumer agreeing to this section. So if the retailers T&Cs say that rejected goods must be returned, rather than just telling the retailer that you have rejected them, then you must return them. If it doesn't then the retailer must arrange to collect them. Obviously in relation to consumer contracts there is now some cross over in the legislation with the Distance Selling Regulations.

In-Car Express T&Cs have a section 'Cancellation, Warranty and Returns'

Altarf, thanks for your post. That's exactly why I think OP will lose. It was very difficult to penetrate his case in the early posts on this & his other thread but we're now down to the nub of the case.

OP buys something and rejects it under SOGA because its not of merchantable quality (and here I have some sympathy with OP as how can you know whether it works until you fit it) but when he bought it, he agreed to pay for its return which will be refunded to him if ICE find its faulty.

An arguement occurs to me about whether ICE will agree with OP's assessment as to whether radio is faulty or was damaged during installation and given OP's expertise, he may be reluctant to send it to ICE to do their 1 sided assessment (not that I'm suggesting they would be 1 sided, just what the OP might be wary of). That said, it doesn't alter the facts or likely determination.