Tmobile Mis-sold Google Phone??

bookworm1363

OlliesDad wrote: »

If a product fails after more than a resonable amount of time (normally 4 weeks or a month but this is hotly discussed)

No. "Reasonable" is defined by what the "average person on the street" would deem reasonable, there is absolutely no definition in law of what constitutes a reasonable period of time. So it is completely incorrect to say "normally 4 weeks or a month". And yes, I am sadly aware that some of the staff at Consumer Direct are using this as a benchmark, and it is a very worrying trend, and one which needs addressing, as this obvious restriction on statutory rights coming from the very people who are supposed to advise the consumers is only going to make things harder for those who do know their rights. :mad:

If you don't believe me, I refer you to
http://www.hmcourts-service.gov.uk/judgmentsfiles/j1627/clegg_v_nordic_marine.htm

where the yacht was delivered in August 2000 and rejected in March 2001.

it is up to the retailer to offer a refund, replacement or a repair (it is the retailers choice). In addition if the item has been used the consumer loses their right to an automatic refund.

Absolutely not. In English law, the customer has a right to reject goods which are not of satisfactory quality. He does not have to act reasonably in choosing rejection rather than damages or cure. He can reject for whatever reason he chooses. The only question is whether he has lost that right by accepting the goods: s 11(4).

Furthermore, it is the retailer's choice to offer refund, replacement or repair as long as the remedy is not disproportionate and/or does not cause undue inconvenience to the customer. I personally would argue that being left without a mobile phone for a whole month is wholly disproportionate.

The buyer loses the right to reject if he informs the seller that he has accepted the goods, or if he acts inconsistently with the seller's reversionary interest in the goods, or if he leaves it too long before telling the seller that he rejects them: s 35(1), (4). The first two of these are subject to his having a reasonable opportunity of examining the goods to ascertain whether they conform to the contract, including the implied terms in section 14; whether he has had such an opportunity is also relevant to the third: s 35(2), (5). And a buyer does not accept the goods simply because he asks for or agrees to their repair: s 35(6). It follows that if a buyer is seeking information which the seller has agreed to supply which will enable the buyer to make a properly informed choice between acceptance, rejection or cure, and if cure in what way, he cannot have lost his right to reject.

In other words, having used the goods for a "reasonable" period of time and then deciding to reject them is not inconsistent. The argument would hinge on whether the consumer had actually accepted the goods or not, and that would be for a judge to decide.

Finally, the right to reject under SOGA does NOT run from when the goods are purchased, but from when the consumer has had a reasonable chance to examine and accept them. For instance, if you buy, I don't know, deep sea-fishing gear, but it's only when you go on holiday 3 months later and attempt the deep sea-fishing that you realise you can't breathe underwater with it, you would be quite entitled to reject the stuff then since you didn't have a reasonable chance to examine/try the goods until then.

35. 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 untilhe has had a reasonable opportunity of examining them for the purpose—

(a) of ascertaining whether they are in conformity with the contract,


(4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.

is the exact case law on which it all hinges.

Hope this clarifies a few misconceptions.

OlliesDad

bookworm1363 wrote: »

No. "Reasonable" is defined by what the "average person on the street" would deem reasonable, there is absolutely no definition in law of what constitutes a reasonable period of time.

Can you advise which part of legislation advises it is what the "average person" would deem reasonable?

I would like you to help me then. I bought a car 4 years ago and it has broken down. The average person would ezpect a car to last 10 years plus. As i have not acted in a way other than in accordance to the instructions, i have therefore not "accepted the goods". Does this mean i can return it for a refund? Brilliant! Thanks.

Blacksheep1979

bookworm1363 wrote: »

Absolutely not. In English law, the customer has a right to reject goods which are not of satisfactory quality. He does not have to act reasonably in choosing rejection rather than damages or cure. He can reject for whatever reason he chooses. The only question is whether he has lost that right by accepting the goods: s 11(4).

Furthermore, it is the retailer's choice to offer refund, replacement or repair as long as the remedy is not disproportionate and/or does not cause undue inconvenience to the customer. I personally would argue that being left without a mobile phone for a whole month is wholly disproportionate.

If you bother to read on in the SOGA it also states that a customer cannot demand remedy that is significantly disproportionate to an alternative ie if it will cost significantly more to replace rather than refund an item then the retailer has the choice (once goods have been accepted).

I agree with the acceptable period of time part - it's totally unnaceptable to be without say a fridge for a week in the summer, but you could easily go without a camera for a month - totally different items and uses.

bookworm1363

OlliesDad wrote: »

Can you advise which part of legislation advises it is what the "average person" would deem reasonable?

That's the whole point: It doesn't.

Interestingly enough, despite your obvious sarcasm about cars, one of the first things to advise people who wish to reject a car is to stop using it, as the longer they keep on using it, the more difficult they make it for them to use their statutory rights to reject under SOGA. A car is of course one of the perfect examples of why using the goods doesn't necessarily stop a consumer from rejecting them.

There are many factors to take into account: the price, the brand, the stated purpose, etc... If you buy a £50 banger from your local tradesman, you will not be able to reject it for a long time. If you buy a £65000 series 7 BMW brand new from the showroom, your right to reject will be a good deal longer.

The same applies to whether you bought a £5 toaster from Poundstretcher or a £100 all-singing all-dancing bread grill from Harrods... The right to reject can not be quantified in time because each circumstance differs.

As regards your car, by the way, since you have acted "in a manner consistent with acceptance of the goods" (driving it for 4 years, getting it serviced, personalising it maybe, etc), the test of what a reasonable person would think still applies: Would the average person on the street think that it was reasonable for you to try and claim that you hadn't accepted the goods after 4 years? Of course not, therefore your claim would fail.

I am aware this probably murkies the waters rather than clarifies, but unfortunately, when it comes to rejection, there is no clear cut answer.

bookworm1363

Blacksheep1979 wrote: »

If you bother to read on in the SOGA it also states that a customer cannot demand remedy that is significantly disproportionate to an alternative ie if it will cost significantly more to replace rather than refund an item then the retailer has the choice (once goods have been accepted).

Where did I say otherwise? :huh:

However, (and I don't need to "read on" SOGA, I can quote it in my sleep, lol), there is a gap between what is disproportionate for the retailer and undue inconvenience to the consumer, which is where other legislation comes in, such as the Sales of Goods and Supply Act and the good old UTCCR (and others).

For example and to clarify: Take a £100 phone which fails. The retailer says it can be fixed, but the parts (which cost £2) are coming from China, and are currently in transit and will take 3 months to arrive. Even though replacing the whole phone or refunding it will cost the retailer significantly more than waiting for the part, it is unreasonable to expect the consumer to be without his phone for 3 months.

A lot of the arguments happen in that gap. Let's face it, most retailers when faced with an extreme case as I described would make the right choice and offer a replacement or a refund. Likewise, if the consumer gets told that the phone will be fixed within 1 week to 10 days, most people will accept that. The issues arise when what the retailer thinks is reasonable and what the comsumer thinks is reasonable don't meet up.

Crazy_Jamie

Furthermore, it is the retailer's choice to offer refund, replacement or repair as long as the remedy is not disproportionate and/or does not cause undue inconvenience to the customer. I personally would argue that being left without a mobile phone for a whole month is wholly disproportionate.

I would argue the same point, and would have posted something similar (perhaps not in as much detail ) as your post had you not posted first. In June 2007 I bought a MacBook Pro from Apple, and after two weeks the screen fritzed. Now generally these products (as with all Apple products) are highly reliable, and I know that I was just unlucky to get one of the very few faulty ones. I took it back to the store immediately and was told by the 'assistant manager' (not sure he actually was) that it had to go back for a repair and that they could not offer a refund or replacement. Obviously I only wanted a replacement, so pursued that point. The repair would have taken two weeks (ten working days), and I argued that depriving me of the product for half of the first month that I owned it was wholly disproportionate, and that in the circumstances the proper remedy is a replacement. He put this to the store manager, who agreed with me, and after the delivery the next day I had a shiny new MacBook Pro, which (touch wood) hasn't so much as frozen since.

Not only would I argue the above point that I made there, but I would also consider a phone to be more essential in general than a laptop, which gives you a further avenue for argument. I would also make no qualms about the fact that you're debating what the remedy should be for their breach. It is quite proper that they should be inconvenienced in some way for this, because they are the ones who gave you a faulty phone. Personally I would put your case for a replacement rather than a repair.

bookworm1363

OlliesDad wrote: »

I would like you to help me then. I bought a car 4 years ago and it has broken down. The average person would ezpect a car to last 10 years plus. As i have not acted in a way other than in accordance to the instructions, i have therefore not "accepted the goods". Does this mean i can return it for a refund? Brilliant! Thanks.

Going back to this for one moment, since there is educational value even in the most idiotic argument.

There is a difference between rejection (reasonable time to examine the goods, no reason needed for it) and remedy (repair, replacement, refund, rescission). Incidentally, the fact that someone agrees to remedy (repair) doesn't mean that they have necessarily accepted the goods. If the repair fails, there is still scope to reject. That's a different subject for another day.

On to a 4 year old car then. As explained before, you can't reject it. But can you still get remedy? Well, that depends. Your H reg Lada, I'm thinking "no". But what of the £200 000+ Ferrari which has been garaged, valeted, serviced to an inch of its life and yet, 4 years on, gets a serious case of rusting all over? Are you seriously telling me that any owner would happily say: "ah well, fair dos, after all, it's been 4 years, mustn't grumble, I'll pay the thousands £££ needed to restore it to its glory and we'll say no more about it"? Somehow, I don't think so. :rolleyes:

I have just finished obtaining remedy for a 3 years old TV which failed: 60% refund against price paid in 2005, taking into account the 3 yrs use I have had of it. That's fair. The TV was a -then- top of the range 42" Sony, for which I had paid nearly £1500, so yes, when it failed after 3 years, I went to the retailer for remedy. I wouldn't have for a £50 one from Argos.

The remedy offered was consistent (it would have cost them too much to repair, and left us without a TV for too long) with my statutory rights under SOGa, so I took it. The fact that the technology has improved so much and the prices dropped in that time means that even the part-refund allowed me to go buy a 50" plasma Samsung instead, so that was even better. :rotfl:

At the end of it, though, you must do what you think is best for you. Me, I choose to use my consumer rights to the full. If we don't, then they'll get more and more eroded. They already are, judging from some of the replies I see on this forum. Such a shame.

emlou2009

in english for the OP - i worked in mobile phone sales and management admin for 4 years, t-mobile are right in what they say unfortunately for you, 28 days after the original sale if the handset breaks the only option is to send the handset away for repair with them. they also have no legal obligation to supply you with a "loan phone" or to credit you for any line rental for the duration the handset it away for. the reason for this is that the contract is to supply you with a sim card with the calling plan you signed up for and the handset is basically a freebie to entice you to take the contract, the two items are not actually linked at all. all you can do is send the handset away for repair, the good news is that they tend to overestimate on how long it will be away for so IME it shouldnt actually be as long as 15 days for it to come back, and they will only offer a replacement if it needs to be repaired a 3rd time. we used to get people quoting all of the above laws, but they cannot actually be relevant as all companies seem have the same policies and i never once in 4 years heard of anyone successfully sueing them. hope this helps!

bookworm1363

Ah, the good old company policy line: "I work for them, therefore I know they're right". LOL

Actually, you worked for them, therefore you know what their standard fob-off policy states and you know how many people get taken in by it, that's not the same thing.

As for "never once in 4 yrs heard of anyone successfully suing them", could you please specify if you actually heard of anyone suing them full stop?

You see, one of the standards fob-off replies people used to get from the banks was: "no-one has successfully sued us"... conveniently forgetting to mention that they would settle in their millions rather than let it go to court. What's more, staff regularly used to to tell their customers they were wrong to ask for refunds (still do in fact) because "it wasn't their policy and the charges had been correctly applied".

DCAs keep on hounding people against OFT rules because they have been trained to believe those don't apply to them.

Salespeople everywhere keep on telling consumers that "it's over 1 year old, nothing to do with us, go to the manufacturer" because that's what they've been taught.

Simply because you, a foot soldier (yes, even as management admin!) have not heard of it doesn't mean it doesn't happen, it just means you are best left in the dark about it so you can keep on sincerely being "helpful" to people believing in what you say and putting them off by saying, with best intentions: "they're right, you're wrong, I'm sorry".

As for the most powerful pieces of consumer legislation "not being relevant" to company policy, have you never seen in every shop (yes, even where you worked) signs about policies being "in addition to your statutory rights"? Why do you think that is? A store policy can add to or compliment a statutory right, it can not supersede or restrict it in any shape or form.

maximus0983

bookworm1363 wrote: »

Ah, the good old company policy line: "I work for them, therefore I know they're right". LOL

Actually, you worked for them, therefore you know what their standard fob-off policy states and you know how many people get taken in by it, that's not the same thing.

As for "never once in 4 yrs heard of anyone successfully suing them", could you please specify if you actually heard of anyone suing them full stop?

You see, one of the standards fob-off replies people used to get from the banks was: "no-one has successfully sued us"... conveniently forgetting to mention that they would settle in their millions rather than let it go to court. What's more, staff regularly used to to tell their customers they were wrong to ask for refunds (still do in fact) because "it wasn't their policy and the charges had been correctly applied".

DCAs keep on hounding people against OFT rules because they have been trained to believe those don't apply to them.

Salespeople everywhere keep on telling consumers that "it's over 1 year old, nothing to do with us, go to the manufacturer" because that's what they've been taught.

Simply because you, a foot soldier (yes, even as management admin!) have not heard of it doesn't mean it doesn't happen, it just means you are best left in the dark about it so you can keep on sincerely being "helpful" to people believing in what you say and putting them off by saying, with best intentions: "they're right, you're wrong, I'm sorry".

As for the most powerful pieces of consumer legislation "not being relevant" to company policy, have you never seen in every shop (yes, even where you worked) signs about policies being "in addition to your statutory rights"? Why do you think that is? A store policy can add to or compliment a statutory right, it can not supersede or restrict it in any shape or form.

i wont go as far as suing tmobile but i think the whole discussion is going off-tangent slightly.

the idea was to ask if i can ask tmobile to exchange the handset for a different model altogether as i think i was mis-sold the handset. is there anyone who has done that?