Quick questions on Consumer Rights

deethebee

DoaM wrote: »

The clarification comes in guidance notes, but needs some interpretation:

Also stated in the guidance notes:
"118. Subsection (15) requires a trader to provide any refund due to the consumer without undue delay and at the latest within 14 days from when the trader agrees that the consumer is entitled to it. For example, if a consumer rejects goods because of a technical fault which cannot be seen without testing or detailed examination, the 14-day period would start once the trader had carried out the appropriate tests and found the goods were indeed faulty. In contrast, if it was clear from looking at the goods that they breached the relevant requirement under the Act, there is unlikely to be any reason for the trader not to agree immediately that the consumer is entitled to a refund. In any case, there must be no undue delay, so the trader could not delay payment unnecessarily, for example in order to wait for time-consuming tests which are completely irrelevant. Subsection (16) provides that, where the consumer paid money under the contract, the refund must be given in the same form as the original payment unless the consumer agrees otherwise. For example, a consumer who paid cash should receive cash rather than, say, a cheque unless they agree to this. Under subsection (17), no fee may be charged for the provision of a refund."

So the TRADER can confirm the fault/defect, no burden of proof on the customer to prove either that the fault exists or that it was there at the time of purchase.

unholyangel

deethebee wrote: »

The Consumer Rights Act does not state that the burden of proof is on the consumer within the first 30 days, nor that the burden of proof moves to the seller from month 2-6. In the first 30 days the buyer has the right to a full refund and to reject goods that are not as described, fit for purpose or of satisfactory quality. After this 30 days the consumer has to accept a repair or replacement first. Section 19 covers to the short term right to reject as well at 19.3.

Its nothing to do with 30 days. Its to do with the short term right to reject (which can only be exercised in the first 30 days).

Inside 30 days and ask for repair/replacement? Assumption applies.
Exercising the short term right to reject? Assumption does not apply.
Exercising final right to reject (even if within 30 days)? Assumption applies.

You have to understand that the default rule in law is that its for the person bringing the claim/alleging breach to prove that claim/breach. The 6 month assumption is there to provide an exception to that rule rather than setting the rule itself.

deethebee

Unholyangel, I understand that the burden of proof usually lies with the claimant. However, it is also clear to me that the short term right to reject has its own set of rules. It makes no sense that there would be a reverse burden of proof in the first 6 months ONLY if you wanted a repair or replacement. What I understand is that no proof of when the defect or fault was present is needed in the first 30 days - as long as the the product does not conform to contract and this can be proven then the buyer has the right to reject and get a full refund.

Additionally I have read the proposal by the Law Commission and at numerous places in their proposal they have stated that for the purposes of simplicity and to increase consumer confidence, the reverse burden of proof in the first 6 months should also apply to the short term right to reject and that this has been widely agreed on. They proposed that the 30 day right to reject be given to give consumers more confidence when purchasing and forcing them to prove that any defect or fault was present at the time of purchase when having had an item for such a short period would do nothing but to make consumers LESS confident. I do believe this needs to be clarified in the CRA, but I do not believe that any requirement in regards to proof is required in the first 30 days. The right to reject is to allow a consumer to inspect a product and use it for long enough to make sure it conforms to contract. If it is not as described or not of satisfactory quality, why would any burden of proof apply? You can't prove that something is not as described or not of satisfactory quality "at the time of purchase", can you? This is why that rule cannot apply to the right to reject.

So it can be interpreted as: "As far as getting a repair or a replacement for goods that are defective, it is assumed that the defect was present at the time of purchase. For the purpose of the short term right to reject, this assumption does not apply because no assumption is needed to reject something based on quality and being as described. It either is of satisfactory quality and as described or it isn't". E.g. you buy a cabinet door that is covered with melamine. After 3 weeks the coverings are peeling off and the glue is no longer holding it. You're entitled to then reject this based on lack of quality, so how would you prove that it was poor quality at the time of purchase and how would the retailer prove that it wasn't? Quality is quality, no proof needed when it is clearly evident.

unholyangel

deethebee wrote: »

Unholyangel, I understand that the burden of proof usually lies with the claimant. However, it is also clear to me that the short term right to reject has its own set of rules. It makes no sense that there would be a reverse burden of proof in the first 6 months ONLY if you wanted a repair or replacement. What I understand is that no proof of when the defect or fault was present is needed in the first 30 days - as long as the the product does not conform to contract and this can be proven then the buyer has the right to reject and get a full refund.

Additionally I have read the proposal by the Law Commission and at numerous places in their proposal they have stated that for the purposes of simplicity and to increase consumer confidence, the reverse burden of proof in the first 6 months should also apply to the short term right to reject and that this has been widely agreed on. They proposed that the 30 day right to reject be given to give consumers more confidence when purchasing and forcing them to prove that any defect or fault was present at the time of purchase when having had an item for such a short period would do nothing but to make consumers LESS confident. I do believe this needs to be clarified in the CRA, but I do not believe that any requirement in regards to proof is required in the first 30 days. The right to reject is to allow a consumer to inspect a product and use it for long enough to make sure it conforms to contract. If it is not as described or not of satisfactory quality, why would any burden of proof apply? You can't prove that something is not as described or not of satisfactory quality "at the time of purchase", can you? This is why that rule cannot apply to the right to reject.

So it can be interpreted as: "As far as getting a repair or a replacement for goods that are defective, it is assumed that the defect was present at the time of purchase. For the purpose of the short term right to reject, this assumption does not apply because no assumption is needed to reject something based on quality and being as described. It either is of satisfactory quality and as described or it isn't". E.g. you buy a cabinet door that is covered with melamine. After 3 weeks the coverings are peeling off and the glue is no longer holding it. You're entitled to then reject this based on lack of quality, so how would you prove that it was poor quality at the time of purchase and how would the retailer prove that it wasn't? Quality is quality, no proof needed when it is clearly evident.

With all due respect, it doesn't matter whether it makes sense to you or not. The six month assumption expressly excludes the short term right to reject. If they intended it to apply to the short term right to reject then it would have not been expressly excluded from it.

As for the CRA needing to clarify it, I don't think it can get any clearer than what was already posted (by DoaM I think) from the explanatory notes of the CRA which specifically say:

97.Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault. This applies where the consumer exercises their right to a repair or replacement or their right to a price reduction or the final right to reject. This does not apply where the consumer exercises the short-term right to reject. These subsections correspond to section 48A(3) and (4) of the SGA and section 11M(3) and (4) of the SGSA.

Yes, you can prove that something doesn't match its description/isn't of satisfactory quality at the time of purchase. By showing the description and that the goods don't match it. Satisfactory quality may have a little more subjectivity to it, but its still possible to prove.

For example substandard components used or poor soldering which leads to premature failure would mean they were not of satisfactory quality as durability is one of the things which would make goods of unsatisfactory quality.

deethebee

unholyangel wrote: »

Its nothing to do with 30 days. Its to do with the short term right to reject (which can only be exercised in the first 30 days).

Inside 30 days and ask for repair/replacement? Assumption applies.
Exercising the short term right to reject? Assumption does not apply.
Exercising final right to reject (even if within 30 days)? Assumption applies.

You have to understand that the default rule in law is that its for the person bringing the claim/alleging breach to prove that claim/breach. The 6 month assumption is there to provide an exception to that rule rather than setting the rule itself.

To be honest with you, I think there is a confusion here created by your first post on the subject. You stated that the consumer must prove the item doesn't conform to contract and then said that if they choose a repair or a replacement the trader must prove it does conform to contract - and that's where it gets messy. The burden of proof relating to the trader in the first 6 months is not to prove the goods do conform, they have to prove that they conformed "at the time of purchase". So you've confused the 2 there - it's one thing to prove a fault exists, it's another to prove it was there at the time of purchase. The consumer may need to prove a fault exists, but they don't have to prove it was there at the time of purchase. Similarly, if a repair or replacement is chosen then the fault clearly exists if it needs to be repaired or replaced so the burden of proof relates to whether or not the fault was present at the time of purchase and not whether it exists at all.

So to conclude, in the first 30 days the customer has a short term right to reject and a refund should be given without undue delay once the trader confirms that the fault exists. If, within the first 6 months, an item becomes damaged or is faulty and the consumer requests a repair or replacement and the seller refuses then it was assumed the defect or fault was present at the time of purchase and the consumer can take the trader to court over it unless the trader can prove that the goods conformed to contract at the time of purchase. The short term right to reject is there to avoid unnecessary complications and costs and ensures that a customer can get a refund if an item does not conform to contract within the first 30 days of ownership. Whether or not it conformed at the time of purchase is irrelevant.

deethebee

unholyangel wrote: »

With all due respect, it doesn't matter whether it makes sense to you or not. The six month assumption expressly excludes the short term right to reject. If they intended it to apply to the short term right to reject then it would have not been expressly excluded from it.

As for the CRA needing to clarify it, I don't think it can get any clearer than what was already posted (by DoaM I think) from the explanatory notes of the CRA which specifically say:


Yes, you can prove that something doesn't match its description/isn't of satisfactory quality at the time of purchase. By showing the description and that the goods don't match it. Satisfactory quality may have a little more subjectivity to it, but its still possible to prove.

For example substandard components used or poor soldering which leads to premature failure would mean they were not of satisfactory quality as durability is one of the things which would make goods of unsatisfactory quality.

With all due respect, the Consumer Rights Act is not put there to confuse consumers but to give them confidence and rights. So if it doesn't make sense to me, it won't make sense to a lot of other people and it would defeat the purpose. As I've already stated, the 6 month assumption doesn't apply because the short term right to reject has its own set of rules.

What you said in your last paragraph really kind of proves my point, if something fails prematurely (within 30 days) then it would mean it is not of satisfactory quality. Proving that it was not of satisfactory quality "at the time of purchase" does not apply because if it's not of satisfactory quality then it does not conform to contract and within 30 days the seller cannot challenge whether it did not conform at the time of purchase when the right to reject is exercised. You can prove quality and not as described etc, but that is different to proving it was like that at the time of purchase and is unnecessary within the first 30 days and as I've explained in my previous post, I think that's where the confusion is coming in here as we're getting different rules mixed up.

shaun_from_Africa

deethebee wrote: »

So to conclude, in the first 30 days the customer has a short term right to reject and a refund should be given without undue delay once the trader confirms that the fault exists.

No.
As unholyangel has already correctly explained, when exercising your short term right of rejection and seeking a refund, the onus in on the consumer to prove that the fault is inherent from manufacture.

97.Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault. This applies where the consumer exercises their right to a repair or replacement or their right to a price reduction or the final right to reject. This does not apply where the consumer exercises the short-term right to reject. These subsections correspond to section 48A(3) and (4) of the SGA and section 11M(3) and (4) of the SGSA.

http://www.legislation.gov.uk/ukpga/2015/15/notes

deethebee wrote: »

it's one thing to prove a fault exists, it's another to prove it was there at the time of purchase. The consumer may need to prove a fault exists, but they don't have to prove it was there at the time of purchase.

Again, wrong.
Proving that it was there at the time of purchase or was caused by something that was there at that time (such as a dodgy solder joint) is exactly what they have to do.
Simply proving a fault exists means nothing as that fault could have been caused by misuse.

deethebee wrote: »

if something fails prematurely (within 30 days) then it would mean it is not of satisfactory quality. Proving that it was not of satisfactory quality.

I could buy an electrical item designed to be used on a 240v system, take it to the USA, plug it into the mains there and fry it.
Does that mean that it's not of satisfactory quality?

shaun_from_Africa

Here's how Trading Standards put it:

https://www.bromley.gov.uk/leaflet/122483/14/684/d

GOODS

If you exercise your short-term right to reject (that is, to reject the goods within 30 days) then you may have to prove that the goods were faulty at the time they were supplied to you, unless the fault is obvious.

However, if you opt for a repair or replacement or are seeking the remedies of either price reduction or final right to reject and a fault is discovered within six months of receiving the goods, then in most cases it is presumed that the fault was there when you bought the goods. Sometimes faults do not show up straight away but they were nevertheless present in the goods. It is for the trader to prove otherwise; they may, for instance, believe that you have damaged or misused the goods. This is commonly referred to as the 'reversed burden of proof'.

After six months, the burden switches back to you to prove there was a fault if you want to make a claim against the trader because the goods are faulty.

deethebee

Shaun - unholyangel actually only said that the consumer has to prove the fault exists and not that it existed at the time of purchase so saying "As unholyangel said" is not accurate. That sentence you quoted was actually taken directly from the Consumer Rights Act Part 1, Chapter 2, section 20.

As I already explained, the right to reject is not applied to that paragraph because there is no burden of proof in regards to conformity to contract at the time of purchase, only conformity to contract.

Right, a fault can occur due to misuse but that is also covered. So if something has obviously arisen due to misuse then a refund would not be due and a customer is not entitled to claim a refund if they caused the fault.

The other quote about something failing prematurely was something I quoted from Unholy Angel, so take it up with him/her if you don't like it. However, misuse is a separate issue and I already covered. Misusing something does not make it of unsatisfactory quality if it breaks.

I've actually quoted bits from the guidance on the CRA myself which you've obviously paid no attention to and other things I've found in my research, as well as misquoting people so I'm not too sure there's any point arguing with you over it as you clearly don't understand what's being said.

deethebee

shaun_from_Africa wrote: »

Here's how Trading Standards put it:

https://www.bromley.gov.uk/leaflet/122483/14/684/d

"Unless the fault is obvious"....hmmm...so they are saying if the fault is obvious you don't have to prove it was there at the time of purchase but if it's not obvious then you do. Very bad interpretation of the law, but nonetheless still does not confirm that the buyer has to prove it was there at the time of purchase.

Here are a few solicitor's and consumer websites in regards to burden of proof:

https://www.longmores.law/articles/consumer-rights-act-2015/
https://www.geldards.com/the-consumer-rights-act-2015---whats-in-store-for-traders-1.aspx
https://www.hetas.co.uk/which-trusted-traders-examines-the-new-consumer-rights-act-2015/


None of them say that the consumer has to prove the goods did not conform to contract at the time of purchase, only that they have to prove they do not conform. Other websites do not say the customer has to prove anything.