Faulty Washing Machine from Makro as business - Any rights?

Equaliser123

DrScotsman wrote: »

taxiphil: That sounds amazing, but there's one thing I don't get:



I'm not sure I understand the bold...By going to Makro (clearly a place only intending to sell to businesses, especially given their T&C) aren't you "holding yourself out" as making the contract in the course of a business?

Yes you are. However, whether you are ACTUALLY acting in the course of a business is a matter of fact and law.

The bottom line is that you cannot contract out of SOGA. However, Makro may terminate your membership.

Equaliser123

Anihilator wrote: »

No it wouldnt.

The costs are as a result of the OP's breach of contract hence recoverable.

SOGA totally applies in B2B transactions!!!! Go check...

It is true that it can be contracted out of but any such contract would be subject to the reasonableness test of the Unfair Contract Terms Act 1977.

Anihilator

Equaliser123 wrote: »

Yes you are. However, whether you are ACTUALLY acting in the course of a business is a matter of fact and law.

The bottom line is that you cannot contract out of SOGA. However, Makro may terminate your membership.

Makro are entitled to recover any losses incurred due to the OP's breach of contract. This would include any costs incurred in meeting the SOGA which has only become due to the OP's breach of contract.

DrScotsman

Equaliser123 wrote: »

Yes you are. However, whether you are ACTUALLY acting in the course of a business is a matter of fact and law.

Sorry, you've lost me. In fact/law, would my mum have been considered "holding herself out as making the contract in the course of a business", and hence failing to satisfy condition (a) there?

The bottom line is that you cannot contract out of SOGA. However, Makro may terminate your membership.

Just to let everyone know I am keeping this in mind, and I don't plan on risking getting my mum's membership killed (unless she's okay with it). However it is good to know the laws. Especially if we bring section 75 into this

(I'm also aware about the onus of proof being on us with respect to showing it's faulty for the purposes of the Sale of Goods act.)

DrScotsman

Anihilator wrote: »

Makro are entitled to recover any losses incurred due to the OP's breach of contract. This would include any costs incurred in meeting the SOGA which has only become due to the OP's breach of contract.

This is bothering me. What you're saying seems to make sense, but it starts to sound like Makro's got a get-out-of-jail-free card here that they aren't due...

I mean if Comet included a term in their contract with you saying that "You will not hold us responsible for breaches of the Sale of Goods act", that wouldn't mean that if you sued them for breaching SOGA, then they could sue you for breaching contract. That term would be invalid. Does the same not apply to Makro in this scenario?

6 Sale and hire purchase

(2)As against a person dealing as consumer, liability for breach of the obligations arising from—

(a)[F2section 13, 14, or 15 of the 1979 Act](sellers’s implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose);

cannot be excluded or restricted by reference to any contract term.

If you sued Makro for breach of SOGA, and Makro successfully sued you for breach of contract, then effectively Makro have excluded your SOGA rights, which contradicts the above. The question is can I remove the word "effectively" and have that sentence still true? If yes, then Makro cannot sue for breach of contract.

Anihilator

DrScotsman wrote: »

This is bothering me. What you're saying seems to make sense, but it starts to sound like Makro's got a get-out-of-jail-free card here that they aren't due...

I mean if Comet included a term in their contract with you saying that "You will not hold us responsible for breaches of the Sale of Goods act", that wouldn't mean that if you sued them for breaching SOGA, then they could sue you for breaching contract. That term would be invalid. Does the same not apply to Makro in this scenario?



If you sued Makro for breach of SOGA, and Makro successfully sued you for breach of contract, then effectively Makro have excluded your SOGA rights, which contradicts the above. The question is can I remove the word "effectively" and have that sentence still true? If yes, then Makro cannot sue for breach of contract.

I don't believe so as Makro have very strict terms of membership and make it clear you are a business person. There is no way to claim that you could innocently contract with Marko as a consumer and not realise it was business only hence the OP has actually deliberately deceived and breached their contract with Makro at an expense to Makro.

I agree in the outcome but would suggest the SOGA rights are seperate to Makro's rights to recover there losses due to a breach of contract even though it results from the SOGA.

It is of course open to interpretation but I would suggest the above is fair and reasonable and doesnt break any legality

At least in the Dell cases etc there was possibility of it being accidental to strengthen their stance.

taxiphil

Annihilator, I think you're missing the point. Even if it was a B2B transaction, SOGA would still apply to this particular transaction because of the precedent I quoted earlier - R&B Customs Brokers. So the OP's mum doesn't even have to submit the argument that she contracted as a consumer - she can simply accept the B2B terms.

The facts of the R&B case may help to put some perspective on this: the claimant (a company) bought a car off another company, yet because the car was only "incidental" to the claimant's course of business (i.e. they were not buying it to resell for commercial purposes, but merely to use) it was held that SOGA should apply.

So for all practical purposes, a large amount of what Makro sell to other businesses is going to be covered by SOGA, if it's for the buyer's actual use, but not for resale.

E.g. if you were an estate agent and bought a fax machine off Makro to be used in your office, it would be covered, but if you ran an electronics shop and bought 20 fax machines off Makro to resell in your shop at a profit, they wouldn't be covered.

Equaliser123

Completely and utterly agree with Taxiphil.

Anihilator - you are clearly speaking from a position of zero knowledge.

OP - you have a complete case. I know. I have previously taken Makro to Court over a faulty satnav. Guess what? They settled immediately upon issue. As a solicitor by profession, it also cost them my costs of issue and court fee.

They will not want to defend this. Go for it.

taxiphil

Oh, forgot to add, that also means there can be no "loss" on Makro's part for any alleged "breach of contract" by the OP's mum, since their liability under SOGA would have been exactly the same whether she was a consumer or a business.

Equaliser123

taxiphil wrote: »

Oh, forgot to add, that also means there can be no "loss" on Makro's part for any alleged "breach of contract" by the OP's mum, since their liability under SOGA would have been exactly the same whether she was a consumer or a business.

Yep.

All the District Judges that I know would frown at a claim against OP of "complying with law".