"Accepting" faulty or incorrect goods through use

DD265

I've struggled to find the answer to this so I thought I'd ask you knowledgeable people!

I basically could do with knowing the legal stance on this for work - I work in the mail order department for a UK retailer. Mistakes do unfortunately happen, and in this instance we sent an incorrectly sized item to a customer. The packaging was correct, but the product inside apparently isn't - it's smaller.

We're still waiting for photo evidence - we've seen a photo of the outside, and the packaging, but not the size label in the item. I think they meant to send it, but attached the wrong one as there were duplicates on the email. This is an overseas order, so it's not as simple as "send the item back and we'll check it" because postage is more than the item is worth.

The customer has - after knowing the item was incorrectly sized - used it. It's now dirty - it's a horse rug!

When I've spoken to various government bodies (can't remember which) about this before, I never really got an answer to this specific situation. My understanding, although I don't know where I got this from, was that use of faulty/incorrect goods, assuming that you know before use that they're incorrect, is tantamount to accepting the fault.

Is this correct?

We haven't yet decided what we're going to do. We certainly will offer the customer something and not just say "tough, you used it good bye" but I'd really like to know whether there is an answer to this in contract law. Then I can come up with the most appropriate solution tomorrow.

Edit - just spotted the consumer rights board - I'm happy for this to be moved but I won't repost in there as I don't know how to delete this one. :-/

booter

In this case, I think S35 of the Sale of Goods Act would apply:-

(1)The buyer is deemed to have accepted the goods —.
(a)when he intimates to the seller that he has accepted them, or.
(b)when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.

(2)Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose—.
(a)of ascertaining whether they are in conformity with the contract, and.
(b)in the case of a contract for sale by sample, of comparing the bulk with the sample.

If the buyer had already contacted/complained re the size before using the item, and then still went and used, it, I'd say they'd "accepted" it. If it were used, and then discovered to be the wrong size upon use, then I'd say that the use of the item was not "acceptance".

HTH

KilGore_3

Unless this is a British Jurisdiction then surely the sale of goods act doesn't apply?
My own opinion would be that if someone has used something, then they are deemed to have accepted it.

(finally back on here after *years* as all my email address's were unsuitable??)