Multiple phone faults breach of contract?

psychiedave

I have a nokia N97 and I've had more problems that enough with it, is there any chance that I could argue this as a breach of contract and effectively give it back to them and cancelling the contract?
It's just that I'm getting a bit cheesed off with sending my phone off for repair! It's with Vodafone

gjchester

Sorry no. The contract for the supply of the phone is not related to the contract to supply airtime. You can't cancel if the phone has issues.
Remember though you have a contract for the supply of the phone and you may be able to get that exchanged under that contract.

butterbeanmash

gjchester wrote: »

Sorry no. The contract for the supply of the phone is not related to the contract to supply airtime. You can't cancel if the phone has issues.
Remember though you have a contract for the supply of the phone and you may be able to get that exchanged under that contract.

I beg to differ. I threatened '3' with the Sale Of Goods Act, and contacted Consumer Direct about the joke that was my n97. If they can't repair the device you are entitled to a replacement of equal or greater value. If Vodafone can't provide this (bear in mind the price of the n97) then they are in breach of the contract (the phone is part of the contract) and you are within your rights to cancel it. '3' accepted this, and had I not agreed to accept an HTC Hero I could have cancelled the contract on these grounds. I also made it clear to '3' that I was completely aware that the problems with the n97 were not, in the main, their fault, but as the agent who provided the handset I could only go back to them.
You'll find more information here (Consumer Direct), and you might want to have a browse through the Nokia forums here to get an idea of what others are doing.
Hope this helps

gjchester

butterbeanmash wrote: »

I beg to differ. I threatened '3' with the Sale Of Goods Act, and contacted Consumer Direct about the joke that was my n97. If they can't repair the device you are entitled to a replacement of equal or greater value. If Vodafone can't provide this (bear in mind the price of the n97) then they are in breach of the contract (the phone is part of the contract) and you are within your rights to cancel it. '3' accepted this, and had I not agreed to accept an HTC Hero I could have cancelled the contract on these grounds. I also made it clear to '3' that I was completely aware that the problems with the n97 were not, in the main, their fault, but as the agent who provided the handset I could only go back to them.
You'll find more information here (Consumer Direct), and you might want to have a browse through the Nokia forums here to get an idea of what others are doing.
Hope this helps

The OP wasn't saying he was having issues getting the repaired / replaced he asked if he could use that to cancel and airtime contract.

When you take out a phone contract you take out two contract effectivly. One for the supply of the phone, one for the supply of airtime services.
They are tied to gether in that the phone is free as you got the services but thats it. Once the airtime contract comies into force the phone becomes yours and it's not related to the service. There may be a fault with the phone and Voda has to fix it, but that has nothing to do with the airtime contract.

You may have got lucky with three. A broken / lost / stolen phone is not grounds to cancel a contract. Thats said it you had not accepted the phone you may have then found yourself in that situation.

The Voda T&C are clear on that (the bolding is mine)



This Agreement is for your SIM card and the minutes, texts, data and other services that you use. This Agreement does not cover the buying or maintenance of any mobile equipment that has also been provided to you. If your mobile equipment stops working, is lost or stolen, you must still keep to this Agreement and pay the monthly line rental charges until this Agreement has ended. If your mobile equipment is lost or stolen you are also required to pay for all other call and usage charges up to the time you tell us that it has been lost or stolen.

butterbeanmash

gjchester wrote: »

When you take out a phone contract you take out two contract effectivly. One for the supply of the phone, one for the supply of airtime services.
They are tied to gether in that the phone is free as you got the services but thats it. Once the airtime contract comies into force the phone becomes yours and it's not related to the service. There may be a fault with the phone and Voda has to fix it, but that has nothing to do with the airtime contract.

This is not what Consumer Direct advised me. If the faulty handset was supplied as part of the contract, and the supplier has been given the opportunity to repair it and failed, then they must replace it with a handset of equal or greater value. If they are unable to do this then they are in breach of the entire contract. Vodafone might try and weedle out of it by saying that the phone is yours, but as the agent who provided the phone they are responsible for ensuring that it complies with the Sale of Goods Act. As I pointed out, we all know that Nokia are responsible for the n97 but unless you bought the phone direct from them your only comeback is with the supplier. Their T & C's are actually contrary to the advice I was given, and quite possibly wouldn't stand legal scrutiny if the contract responsibilities were disputed.

gjchester

butterbeanmash wrote: »

This is not what Consumer Direct advised me. If the faulty handset was supplied as part of the contract, and the supplier has been given the opportunity to repair it and failed, then they must replace it with a handset of equal or greater value. If they are unable to do this then they are in breach of the entire contract. Vodafone might try and weedle out of it by saying that the phone is yours, but as the agent who provided the phone they are responsible for ensuring that it complies with the Sale of Goods Act. As I pointed out, we all know that Nokia are responsible for the n97 but unless you bought the phone direct from them your only comeback is with the supplier. Their T & C's are actually contrary to the advice I was given, and quite possibly wouldn't stand legal scrutiny if the contract responsibilities were disputed.

Consumer direct are wrong.

Yes Vodafone are responsible for the phone and the warranty on it, but a lost, stolen or broken phone is not grounds to cancel the airtime contract.

Sale of goods act just says they have to give you a working phone by repair or replacment.

Trying to get out of a contract due to faulty phone is a well worn path. You may get out as a goodwill gesture but thats all.

Human_Writes

gjchester wrote: »

Consumer direct are wrong.

Agreed, the advice they've given in relation to this is total garbage!

butterbeanmash

I'm not really talking about a "lost, broken or stolen phone". My n97 was not "of satisfactory quality, fit for its purpose and as described". As of part my contract '3' provided me with the equipment to use their service. The n97 is so bad that it is often not possible to make or recieve calls. If this happens often, and Vodafone are unable to repair the 'phone then the buyer is "entitled to a refund". If the 'phone was free but Vodafone cannot offer a replacement of equal or greater value (i.e. £500), then the OP would find themselves well within their rights to return the faulty equipment and cancel the contract, on the grounds that Vodafone are unable to provide the service to which each party is contractually bound.
One more thing from Consumer Direct:
"Your rights cannot be taken away by terms and conditions written into a notice, receipt, contract, warranty or guarantee."
At the end of the day I'd suggest that the OP call Consumer Direct themselves, because it won't be the first call they've had about the n97.
Just to add that I'm not advocating this as a reason to get out of a phone contract with any other mobile except the Nokia n97. All the networks know just how bad the phone is which is why all but '3' stopped selling it after about three months. It is the most 'recycled' smartphone in history. Read into that what you will.

drbesty

You'd have a hard time arguing that it isnt fit for purpose, its a phone, its purpose is to make phone calls, no matter how lousy the phone may be in other respects it can still make phone calls

butterbeanmash

drbesty wrote: »

You'd have a hard time arguing that it isnt fit for purpose, its a phone, its purpose is to make phone calls, no matter how lousy the phone may be in other respects it can still make phone calls

As I said:

"The n97 is so bad that it is often not possible to make or recieve calls"

gjchester

butterbeanmash wrote: »

I'm not really talking about a "lost, broken or stolen phone". My n97 was not "of satisfactory quality, fit for its purpose and as described". As part my contract '3' provided me with the equipment to use their service. The n97 is so bad that it is often not possible to make or recieve calls. If this happens often, and Vodafone are unable to repair the 'phone then the buyer is "entitled to a refund". If the 'phone was free but Vodafone cannot offer a replacement of equal or greater value (i.e. £500), then the OP would find themselves well within their rights to return the faulty equipment and cancel the contract, on the grounds that Vodafone are unable to provide the service to which each party is contractually bound.
One more thing from Consumer Direct:
"Your rights cannot be taken away by terms and conditions written into a notice, receipt, contract, warranty or guarantee."
At the end of the day I'd suggest that the OP call Consumer Direct themselves, because it won't be the first call they've had about the n97.
Just to add that I'm not advocating this as a reason to get out of a phone contract with any other mobile except the Nokia n97. All the networks know just how bad the phone is which is why all but '3' stopped selling it after about three months. It is the most 'recycled' smartphone in history. Read into that what you will.

The N97 may be pants but that is still not grounds to terminate the airtime contract.

When you get a phone you agree to a contract for Airtime, in this case with Vodafone. As an inducement to take out that contract the peopel who sign you up offers you a phone. The phone is not free but they use the commision they get to subsidise that phone for you as a end user. In this case this too is an arm of Vodafone.

However that DOES NOT mean the contracts are linked.

If you got the phone from say CPW, then if it went faulty you'd have no recourse to cancel the airtime contract, why should it be different if you are dealing with two arms of the same company. In this case although you are dealing with two arms of the same company, but there is still no link. You can't cancel the airtime agreement due to phone issues.

In terms of not fit for purpose that may be true, but then you've also hit the nail on the head, the phone was free, the value is £0, thats what the customer paid. It doesn't matter what the cost to replace it Vodafone Retail only have to offer an equivalent (or better) specification phone under the warranty. Also under the sale of goods act it's down to the VENDOR to offer a refund or replacment, the customer cannot say they want a refund, it's the vendors choice. As long as they offer a repair or an equivalent then you can't do anything about it, and the equivalent also means it could be a refurbished model, it does not have to be new.

Vodafone Airtime services are providing a service, that the phone cannot use, so there may be a case agains Vodafone retail over the phone, but thats not an issue related to the airtime contract. The airtime side they are meeting all obligations on there contrct with you, ie the service is available to use. Your hardware is the issue.

You can't read too much into the fact it's not on sale anymore, phones generally chage every few months. It may be pants, but once it's not in fashion then it will be dropped regardless. The N97 has been replaced by the N97 Mini, which is on Vodafone, which is just a smaller version of the N97, again a fashion change.

I'm sure there are many people with the phone who are happy, and have no problems. *IF* there had been a recall on the N97 you may have a better case, but there hasn't. You could also find that the problems are not in the N97 as such but in the customisation done to every phone by the carriers and the stock firmware is fine.

All this is not to say the OP has a case against Vodafone retail over a faulty phone, but it's just not grounds to cancel the entire contract.