Iron bought from Makro - are they exempt from consumer rights?

Tozer

robbo2105 wrote: »

I would refer OP to the precedent set in L’Estrange v Graucob [1934] 2 KB 394 as the case has many similarities to this situation.

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That case dealt with incorporation of standard terms and isn't at all relevant to the points we are talking about.

No standard terms can take away rights as a consumer.

OlliesDad

Tozer wrote: »

Yes if it is a genuine business to business transaction. There have been some cases where a business buys or sells something out of the ordinary and it has been successfully argued that it is not acting in the course of a business.

Can you provide examples of such cases?

LinasPilibaitisisbatman

Also to add I am almost certain every Marko has the terms re being business clearly displayed at entrances/tills and make people sign to confirm that they are entering/purchasing as a business for each visit/purchase.

Halloway

LinasPilibaitisisbatman wrote: »

Also to add I am almost certain every Marko has the terms re being business clearly displayed at entrances/tills and make people sign to confirm that they are entering/purchasing as a business for each visit/purchase.

Do you think it would make any difference if Asda or Tesco had similar terms posted up at their tills?

Whilst I am still in the dark as to how precisely one determines what is a consumer transaction and what is a b2b transaction, I am with Tozer on this one.

LinasPilibaitisisbatman

Halloway wrote: »

Do you think it would make any difference if Asda or Tesco had similar terms posted up at their tills?

Whilst I am still in the dark as to how precisely one determines what is a consumer transaction and what is a b2b transaction, I am with Tozer on this one.

No but then Asda and Tesco dont limit access to their premises only to business buyers and make those accessing their premises sign terms stating they are business buyers.

If this went to a court I don't for a second think a judge would reward the OP's fraudulent behaviour.

OlliesDad

Halloway wrote: »

Do you think it would make any difference if Asda or Tesco had similar terms posted up at their tills?

Whilst I am still in the dark as to how precisely one determines what is a consumer transaction and what is a b2b transaction, I am with Tozer on this one.

Confirming that you are ignorant on the matter and then making a statement that Tozer is correct is a bit of a contradiction.

Halloway

OlliesDad wrote: »

Confirming that you are ignorant on the matter and then making a statement that Tozer is correct is a bit of a contradiction.

I'm with Tozer on the fact that you can't contract out of SOGA irrespective of what your T&Cs and posted notices say. There's no contradiction there.

Perhaps you'd like to explain to me the legal difference between a consumer transaction and a b2b transaction?

Bowling_4_Gold

Halloway wrote: »

I'm with Tozer on the fact that you can't contract out of SOGA irrespective of what your T&Cs and posted notices say. There's no contradiction there.

It seems to me that you are saying that although the business (Makro) sells SOELY to other businesses, any customer who buys stuff from them is entitled to the benefits of the SoGA as a consumer, even though they signed a 'disclaimer' before entering the sales floor to confirm their position as a business?? Care to elaborate???

robbo2105

Makro Ts & Cs clearly state:

"3. Goods for sale are intended for and sold on the condition that they are for re-sale, commercial or industrial use only. Private individuals may not make purchases, and any Holder is deemed to have purchased for business use and is not considered to be a consumer."

"13. By paying the invoiced amount the Holder confirms receipt of the goods. Goods will only be refunded/exchanged if the goods are returned in their original condition in their original packaging and are supported by the relevant invoice. Damages or other mistakes must be notified before the authorised user leaves the premises where reasonably practicable. In some cases, the authorised user is required to contact the manufacturer directly in connection with faulty products See MAKRO returns policy for details."

"16. Subject to the MAKRO guarantee, terms of which are available from MAKRO stores, all warranties and conditions, express or implied, including, but not limited to, implied warranties or conditions of satisfactory quality, merchantability and fitness for a particular purpose relating to MAKRO’s sales of products are excluded to the extent permissable by law."

"Makro's 12 Month Faulty Goods Guarantee:

If the product goes wrong within 12 months of purchase due to a fault in workmanship Makro aims to repair the product or exchange it if repair is not possible. Faulty products must be brought to Makro's attention within 12 months of the date of purchase."


Section 11(1) UCTA 1977 applies the reasonableness test to exclusion clauses by asking whether ‘is it a fair and reasonable clause to be included, having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made’

As somebody acting on behalf of the company the OP represents signed up to Makro's terms there can be no reliance on the UCTA reasonableness test - it is entirely reasonable and therefore the exclusion clause stands.

I am living proof that you CAN contract out of SOGA in a b2b transaction - I do it every day as a normal part of my job

Tozer

robbo2105 wrote: »

I am living proof that you CAN contract out of SOGA in a b2b transaction - I do it every day as a normal part of my job

Not said that you cannot contract out of SOGA. Every contract I draft (B2B) contracts out of it! If on standard terms, then it is subject to the reasonableness test.

One of the key tests of reasonableness is the bargaining position of the parties. Given that Makro is a multi-national organisation and its customers are much, much smaller organisations, this test will go against Makro.

Availability of insurance is another. Given that Makro can insure and put in place back-to-back arrangements with its suppliers (like any other retailer) it would again fail this test.

The bottom line is that you CANNOT contract out - whether by terms and conditions, notices or otherwise - if dealing as a consumer.