faulty carpet remnant refund query

derrick

phlogeston wrote: »

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.

"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')."

And again you stop the quote because it undermines your argument; -
"3) The buyer must not require the seller to repair or, as the case may be, replace the goods if that remedy is—
(a) impossible, or
(b) disproportionate in comparison to the other of those remedies, or
(c) disproportionate in comparison to an appropriate reduction in the purchase price under paragraph (a), or rescission under paragraph (b), of section 48C(1) below."

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.

I totally disagree with your interpretation (you continuously miss out parts of quotes to support your unsupportable argument!) the OP could claim for what you say IF they could obtain a product elsewhere of same/similar comparison, but as the product was a remnant then by definition this is not going to be possible, as the supplier has no more and it is very unlikely that another supplier would have the same/similar product!

As I pointed out,in post #7; -
The buyer cannot insist on specific performance of the contract. if the product is not available, and under SoGA, as I have pointed out; -"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".

So the retailer can give a refund and that is the end of the matter, again as quoted by me; - "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." (i.e. small claims court.)

So no court in the land is going to side with the buyer in a case like this!
Specific performance of the contract cannot be complied with if the product does not exist, and in the case of a remnant that is highly unlikely!



.

phlogeston

derrick wrote: »

Specific performance of the contract cannot be complied with if the product does not exist, and in the case of a remnant that is highly unlikely!

Oh my God! Allied Carpets have run out of carpets, and can't supply any replacement for a remnant. They really are in trouble.

derrick

phlogeston wrote: »

Oh my God! Allied Carpets have run out of carpets, and can't supply any replacement for a remnant. They really are in trouble.

You really should get with the programme!
I never said that!

From the OP; - "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)"

The OP wanted a specific remnant, this is NOT available therefore cannot be supplied,(by anyone I would assume).

If this went to a small claims court it would not succeed mainly because, (as the product is not available), as posted by me in reply #12; -""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." (i.e. small claims court.)"

Also I am sure that the court would award costs to the defendant,(an unusual step, but is possible), for unreasonable and vexatious litigation.

Tozer

derrick wrote: »

The OP wanted a specific remnant, this is NOT available therefore cannot be supplied,(by anyone I would assume).

If this went to a small claims court it would not succeed mainly because, (as the product is not available), as posted by me in reply #12; -""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." (i.e. small claims court.)"

Also I am sure that the court would award costs to the defendant,(an unusual step, but is possible), for unreasonable and vexatious litigation.

Couple of points. Firstly, the Claimant would have the right to claim damages to be put in the position he would have been in had the contract been performed correctly.

In other words, if Allied cannot supply, then claimant has right to go elsewhere provided that he takes steps to mitigate his loss (i.e. he could not go into another retailer and say "Give me the same carpet, I don't care how much it costs".

However, the fact that the OP has had a refund partially obstructs the claim assuming that OP did not make clear that the refund was not in full and final settlement.

Oh, and I have never known of any costs being awarded against a claimant in situations like this in the small claims court.

derrick

Tozer wrote: »

Couple of points. Firstly, the Claimant would have the right to claim damages to be put in the position he would have been in had the contract been performed correctly.

In other words, if Allied cannot supply, then claimant has right to go elsewhere provided that he takes steps to mitigate his loss (i.e. he could not go into another retailer and say "Give me the same carpet, I don't care how much it costs".

However, the fact that the OP has had a refund partially obstructs the claim assuming that OP did not make clear that the refund was not in full and final settlement.

Oh, and I have never known of any costs being awarded against a claimant in situations like this in the small claims court.

So you are totally disregarding the quotes from the government websites that relate to the SoGA?

As posted above reply #5; -
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.


The highlighting in my post that you quoted from,(This is exactly the reasoning that would be employed if you sought damages." ), means,IMO, what would happen if you went to the small claims court and sought damages, they would not give you more than you already had been offered/taken,(a refund), and could award costs if they believe that the claimant acted unreasonably and vexatiously, they do have that option, just because you have never heard of any court awarding costs does not mean it never happens.

Tozer

derrick wrote: »

So you are totally disregarding the quotes from the government websites that relate to the SoGA?

As posted above reply #5; -
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.


The highlighting in my post that you quoted from,(This is exactly the reasoning that would be employed if you sought damages." ), means,IMO, what would happen if you went to the small claims court and sought damages, they would not give you more than you already had been offered/taken,(a refund), and could award costs if they believe that the claimant acted unreasonably and vexatiously, they do have that option, just because you have never heard of any court awarding costs does not mean it never happens.

Against the manufacturer, it is not a SOGA issue but a claim under the contractual guarantee.

Small claims courts VERY rarely make any award as to costs. Simply losing a case is not sufficient. In my experience, I have never seen a costs award made.

derrick

Tozer wrote: »

Against the manufacturer, it is not a SOGA issue but a claim under the contractual guarantee.

Small claims courts VERY rarely make any award as to costs. Simply losing a case is not sufficient. In my experience, I have never seen a costs award made.

Have it your way, I disagree, this is a complaint under SoGA,i.e. customer buys from retailer, product faulty , customer goes back to retailer and receives a refund as the product is no longer available, end of story! I cannot see what it has to do with the manufacturer? SoGA is a contract between the seller and the buyer, NOT the manufacterer!


From Consumer Direct; -
The Sale of Goods Act makes reference to ‘the seller’, this is the shop, the retailer, or the individual you bought it from, and is who you made the contract with. It is not the manufacturer, and don’t let the shop tell you otherwise.............................

Tozer

derrick wrote: »

Have it your way, I disagree, this is a complaint under SoGA,i.e. customer buys from retailer, product faulty , customer goes back to retailer and receives a refund as the product is no longer available, end of story! I cannot see what it has to do with the manufacturer? SoGA is a contract between the seller and the buyer, NOT the manufacterer!


From Consumer Direct; -
The Sale of Goods Act makes reference to ‘the seller’, this is the shop, the retailer, or the individual you bought it from, and is who you made the contract with. It is not the manufacturer, and don’t let the shop tell you otherwise.............................

You harp on about Sale of Goods Act but that has nothing to do with the manufacturer.

You are also wrong that SOGA IS the contract. It is fundamentally not. It implies terms into the contract of sale.

Feel free to disagree but it is REALLY basic contract law.

ih8stress

Wow, didn't realise I would cause so much debate when I posted my question!

Thank you to everyone for their input. I was aware that I would not be able to get an exact replacement for the faulty remnant I returned, I just wanted to know whether I could have insisted on them replacing it with a similar remnant (ie the one I saw at £299) rather than just accepting the refund.

I have an appointment at Citizen's Advice at the end of the month for another matter and may just ask them about this whilst I am there. Will keep you all posted.

Thank you

derrick

Tozer wrote: »

You harp on about Sale of Goods Act but that has nothing to do with the manufacturer.

You are also wrong that SOGA IS the contract. It is fundamentally not. It implies terms into the contract of sale.

Feel free to disagree but it is REALLY basic contract law.

I agree that SoGA has nothing to do with the manufacturer, and have said so on several occassions.
I am not wrong about the SoGA, I have given enough quotes from government sites, the contract is between the buyer an the seller, the buyer has no contract with the manufacturer, read again the quote from Consumer Direct in my post #18.