faulty carpet remnant refund query

ih8stress

I recently bought a carpet remnant from Allied Carpets when they had a one day 'any remnant for £60 or under' day.

I arranged for an independent fitter to do the fitting but when he came to cut it, he discovered it was discoloured and also had cut marks on it.

I managed to return it to Allied Carpets who agreed it was faulty. They asked if I'd seen anything else but a similar remnant I pointed out to them was priced at £299 (I'd only got the original one as I had known it was a real bargain for the quality and size) so they just gave me a full refund of £60. I'm just wondering now if I could have insisted on a replacement carpet of the same size and quality as I'd returned instead of a refund?

McKneff

No, i dont think you could have insisted on a replacement. Compensation is supposed to get you back to where you started, they gave you your £60 back,
i suppose you could have possibly claimed the amount that your fitter charged (if indeed he charged you at all, but in fairness to him he should have, he spent time on sorting your carpet out) you but no more than that.

ih8stress

Thank you for your quick reply, anniehanlon. I didn't think I could get a replacement, it's just annoying that I'm unlikely to come across another 'bargain' like the original, especially as every £ does count.

The carpet fitter didn't charge me anything (he'd just fitted laminate for me elsewhere), he knows I'll be using him in the future if I DO find a replacement carpet. He wouldn't even take the money I offered for petrol/time.

phlogeston

anniehanlon wrote: »

No, i dont think you could have insisted on a replacement. Compensation is supposed to get you back to where you started.

This is not true. In contract, you are entitled to be in the position you would have been had the contract been performed properly.

derrick

phlogeston wrote: »

This is not true. In contract, you are entitled to be in the position you would have been had the contract been performed properly.

SoGA applies; -

WHICH
If you want to get a faulty item replaced or repaired You have the right to get a faulty item replaced or repaired, if you're happy with this (or if it's too late to reject it). You can ask the retailer to do either, but they can normally choose to do whatever would be cheapest.
Under the Sale of Goods Act, the retailer must either repair or replace the goods 'within a reasonable time but without causing significant inconvenience'. If the seller doesn't do this, you are entitled to claim either:

• reduction on the purchase price, or
• your money back, minus an amount for the usage you've had of the goods (called 'recision').

BERR; -
Q12. Neither repair nor replacement of the goods are possible. What can I do?

You may either pursue the old route of damages or a partial or full refund. Probably either would give you exactly the same amount of money. You would seek a full refund in scenarios such as those where you had enjoyed absolutely no benefit from the goods. If you had benefited from them then you would seek a partial refund as a fair remedy. This is exactly the reasoning that would be employed if you sought damages.

phlogeston

derrick wrote: »

SoGA applies; -

You have the right to get a faulty item replaced or repaired...

You may either pursue the old route of damages..

I assume you are agreeing with me, as the old route of damages is to sue for the loss due to the breach of contract.

In the case of consumer goods, a refund will usually allow a consumer to go and buy the same item elsewhere for the same or a reduced cost. So, in most cases, a refund would be adequate compensation for the breach.

However, in this case, a refund does not adequately compensate for the loss as a similar article cannot be bought for the same cost. Therefore, a refund is not adequate compensation for the breach.

derrick

phlogeston wrote: »

I assume you are agreeing with me, as the old route of damages is to sue for the loss due to the breach of contract.

In the case of consumer goods, a refund will usually allow a consumer to go and buy the same item elsewhere for the same or a reduced cost. So, in most cases, a refund would be adequate compensation for the breach.

However, in this case, a refund does not adequately compensate for the loss as a similar article cannot be bought for the same cost. Therefore, a refund is not adequate compensation for the breach.

No I am not, the retailer only has to do what they have done in this case to fulfill their obligations under the SoGA, as borne out via my links.

"You have the right to get a faulty item replaced or repaired..." (if you are going to quote from my post/links, quote all of it!).

If the seller doesn't do this, you are entitled to claim either:

• reduction on the purchase price, or
• your money back, minus an amount for the usage you've had of the goods (called 'recision').

"You may either pursue the old route of damages.."

You would seek a full refund in scenarios such as those where you had enjoyed absolutely no benefit from the goods............. This is exactly the reasoning that would be employed if you sought damages.


Again from BERR; -
If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

If repair and replacement are not possible or too costly, then the consumer can seek a partial refund, if they have had some benefit from the good, or a full refund if the fault/s have meant they have enjoyed no benefit


.

phlogeston

derrick wrote: »

"You have the right to get a faulty item replaced or repaired..." (if you are going to quote from my post/links, quote all of it!).

If the seller doesn't do this, you are entitled to claim either:

• reduction on the purchase price, or
• your money back, minus an amount for the usage you've had of the goods (called 'recision').

"You may either pursue the old route of damages.."

You would seek a full refund in scenarios such as those where you had enjoyed absolutely no benefit from the goods............. This is exactly the reasoning that would be employed if you sought damages.


Again from BERR; -
If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

If repair and replacement are not possible or too costly, then the consumer can seek a partial refund, if they have had some benefit from the good, or a full refund if the fault/s have meant they have enjoyed no benefit


.

Damages are any loss arising from the breach of contract - this is not the same as a refund.

Section 5A SoGA 79 (as amended) give additional rights to consumers, they do not limit their existing rights.

PART 5A ADDITIONAL RIGHTS OF BUYER IN CONSUMER CASES

48A Introductory

(1) This section applies if—
(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
(b) the goods do not conform to the contract of sale at the time of delivery.

(2) If this section applies, the buyer has the right—
(a) under and in accordance with section 48B below, to require the seller to repair or replace the goods, or
(b) under and in accordance with section 48C below—
(i) to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or
(ii) to rescind the contract with regard to the goods in question.


The buyer can insist on specific performance of the contract.

The seller can only wriggle out of the RIGHT if the cost is disproportionate (see s48B), and that would be a matter for the court to decide. The cost of replacement or repair might be greater than the original cost, but that in itself is not disproportionate.

I still stand by my statement that compensation for breach of contract is NOT to place you in the position prior to the contract being made, but the position you would have been if the contract was properly performed.

If the buyer rescinds the contract (and is given a refund), they DO NOT lose the common law right to sue for damages for breach of contract....For example any additional costs occured, any injuries sustained and a myriad other reasons.

ih8stress

So does this mean I have a case against Allied? and if so, does anyone know how I would go about this, as I have already been refunded as stated earlier.

phlogeston

In answer to your original question

ih8stress wrote: »

...if I could have insisted on a replacement carpet of the same size and quality as I'd returned instead of a refund?

The answer is yes. You can insist on specific perfromance.

In answer to your new question

ih8stress wrote: »

So does this mean I have a case against Allied? and if so, does anyone know how I would go about this, as I have already been refunded as stated earlier.

The answer is no - you have rescinded the contract and do not appear to have any other losses arising from the breach.

ih8stress

I'm abit confused as you previously said:

If the buyer rescinds the contract (and is given a refund), they DO NOT lose the common law right to sue for damages for breach of contract

and also:

However, in this case, a refund does not adequately compensate for the loss as a similar article cannot be bought for the same cost. Therefore, a refund is not adequate compensation for the breach.