DSR / custom-made

lorrainp

To get straight to the point, my question is:

Am I entitled to a refund under DSR on custom-made items if I am not informed that they are to be custom-made?


Read on for more info . . .

I have just bought a product via distance selling, and when it arrived it was not fit for purpose (although it could be made suitable with some significant modifications).

I believe I have a claim under the Sale of Goods act as "not fit for the purpose made known", but aside from that, it would be easier if I could just apply for a full refund under DSR. I notified the supplier that the product was not suitable on the day that I received it, and I requested a full refund.

The supplier says that they will not refund me because the product was custom-made. However, they did NOT inform me that it was to be custom-made until I requested the refund. The pre-purchase information they supplied made no suggestion of these items ever being custom-made, and based on the fact that most other similar products are made in a variety of sizes off-the-shelf, I had no reason to believe that these would be any different.

I can go into more detail if it helps, but for now my question is - am I entitled to a refund under DSR on custom-made items if I am not informed that they are to be custom-made?

Thanks in advance for your help guys.

arcon5

If an item is personalised your not entitled to cancellation under DSRs. Are you sure you don't mean made to order? If so, these are not excluded frm DSRs unless they are personalised. So if you could clarify that point firstly?

You can though reject personalised goods under Sales of Goods Act for a full refund if it is not fit for purpose (amongst other things). I'm unsure what you mean by "not fit for the purpose made known"?

I'm getting the impression the goods aren't what you expected and can't be used how you intended (as opposed to a fault). If i'm right here... then have the goods been mis-described ('not as described' is also grounds to reject under SOGA)? If they haven't and you simply failed to perform adequate research into the goods then it's unlikely you have a case.

What are the goods?
What is the problem?

custardy

lorrainp wrote: »

To get straight to the point, my question is:

Am I entitled to a refund under DSR on custom-made items if I am not informed that they are to be custom-made?


Read on for more info . . .

I have just bought a product via distance selling, and when it arrived it was not fit for purpose (although it could be made suitable with some significant modifications).

I believe I have a claim under the Sale of Goods act as "not fit for the purpose made known", but aside from that, it would be easier if I could just apply for a full refund under DSR. I notified the supplier that the product was not suitable on the day that I received it, and I requested a full refund.

The supplier says that they will not refund me because the product was custom-made. However, they did NOT inform me that it was to be custom-made until I requested the refund. The pre-purchase information they supplied made no suggestion of these items ever being custom-made, and based on the fact that most other similar products are made in a variety of sizes off-the-shelf, I had no reason to believe that these would be any different.

I can go into more detail if it helps, but for now my question is - am I entitled to a refund under DSR on custom-made items if I am not informed that they are to be custom-made?

Thanks in advance for your help guys.

not an MTB disc brake is it?

mo786uk

need more info on the product in think...

lorrainp

Ok, I'll go into more detail, but it is quite involved and I think this might cloud the issue around the original question.

The product is an end seal (I won't give the brand name - I'll just refer to it as xxxxx) for a timber joist (which slips over the end of the joist and covers the rear, sides and top), supplied by the joist supplier as an optional extra to a job where they designed and sized the joists. The joists were custom-designed and made by the supplier (from a selection of standard heights and widths) based on detailed drawings that I sent them, and ongoing correspondence over a period of weeks. I have no problems with the joists.

As part of the ongoing correspondence, one of the questions I asked was "I presume we need to wrap joists in DPC where built in to masonry?" The response they gave was "Joists should be sealed at ends usually with mastic were built into masonry, alternatively you can install xxxxx seals which I can price for you as an extra over cost. Data sheet attached. This is to act against air leakage around the joists." I did not specify or suggest the joist seals - the suggestion was entirely made by the supplier in response to my question about how best to seal the ends. The onus was therefore on them to suggest something fit for the purpose made known.

I was given no further information in order to make my decision other than the above suggestion and the data sheet (which doesn't actually give any "data" - it's really just a product flyer).

The seals that arrived are unsuitable for two reasons, the main one being that there is a small upstand ("flange") on top. We will be fixing a 100mm-wide timber direct to the top of the joist, right at the end where the seal sits, so cannot have any upstands here. The drawings that the I gave the supplier clearly show this timber fixed to the top of the joist.

When I told the supplier that the seals were unsuitable, they sent me the manufacturer's phone number to ask if they have an alternative product. The manufacturer told me to cut the flanges off the seals with a stanley knife. This will take a long time, and negates the reasons for purchasing the seals in the first place - see below. It also demonstrates that the supplier did not consider my construction details when suggesting the seals, as he was not aware that they were unsuitable as supplied until I rang to tell him.

Secondly, the wider seals, which they now say have been custom-made, are wider than they should be, therefore don't "grip the joist" as described in their data sheet - see below.


My complaints are:

1. There are no product codes, sizes or dimensions on the data sheet I was sent - no information on which sizes are standard and which are custom-made. I have two joist widths, and the supplier now tells me that the wider seals had to be custom-made. Other similar products have off-the-shelf product codes for several different widths, including ones wider than mine. They have offered me a refund only on the narrower seals which they now tell me were not custom-made.
This is my primary issue - I was not told that any of them were to be custom-made, and I had no reason to suspect that they might be, given that several other manufacturers make similar products in various sizes off-the-shelf. They did not send me any details of exactly what seals they would be supplying (just a single line item on the pro forma - "xxxxx end seals"). They didn't send me any drawings for approval (which they did for the joists). Does that count as being "personalised"?

2. The data sheet states that the seal “grips the joist end while the wall is being built up”. The wider (custom-made) seals supplied, for 146mm-wide joists, are 155mm, and therefore do not grip the joist. The product is therefore not as described.

3. I fully disclosed my construction detail to the supplier, and their suggestion was a product that needs to be extensively modified in order to be suitable. They did not tell me that it would need modifying. I think it's unreasonable that a product supplied for a specific purpose should need to be extensively modified in order to be suitable, and therefore is "not fit for the purpose made known". I was not given sufficient information in order to make an informed decision on this.

4. The data sheet shows sketches of the joist seal with a flange upstand to the sides and top, and states that these would be embedded in mortar. I assumed that, in common with other similar products, this would be embedded in the front face of the mortar, and therefore the seal would be 100mm-deep, and would not interfere with the 100mm timber on top. As it turned out, the seals are only 70mm deep, and therefore DO interfere with the top timber, and therefore cannot be used as they are. The sketches on the data sheet do show the flange sitting BACK from the face of the blockwork (NOT suitable for me), and don't show any sketches with the flange at the face of the blockwork, which is what I need. I did not query this, as the supplier was fully aware of my construction detail, and had fully designed and specified everything for this job, therefore I assumed that they would not suggest an unsuitable product.

5. There were no seal dimensions on the sheet, so I had no way of knowing that the seal depth is always 70mm. Had dimensions been supplied, I would have queried the suitability. As already mentioned, most similar products have the flange sitting flush with the blockwork / mortar face, therefore ARE the correct 100mm dimension.

6. My reason for purchasing the seals was to avoid the time and labour involved in sealing the joists with mastic – the data sheet implied that the seals simply had to be slipped over the end of the joist, and explicitly states that the seals are “low-cost”, “inexpensive” items, “less expensive than mastic”, and that “fitting time is a few seconds”. What I received is something that will involve a lot of time and labour to make suitable, AND I’ve had to pay almost £400 for the product, thereby completely negating my reason for buying in the first place. The goods are therefore not as described.


Sorry to go into so much detail, but I can't fully explain the situation unless I do so. Thanks in advance for any responses from anyone who hasn't been put off by such a long post!

bod1467

Hmm. Was this a business to business transaction? If yes then DSRs probably don't apply. What do the supplier T&Cs say?

Not sure if SOGA also still applies for B2B transactions.

lorrainp

bod1467 wrote: »

Hmm. Was this a business to business transaction? If yes then DSRs probably don't apply. What do the supplier T&Cs say?

No, not a business to business transaction. I have checked the T&Cs and there is no mention of this.

The closest it gets to this is "The expression 'customer' means any company, firm or person purchasing from the company . . ."

wealdroam

lorrainp wrote: »

The closest it gets to this is "The expression 'customer' means any company, firm or person purchasing from the company . . ."

That's a reasonable definition of customer.

But the point being made was are you a consumer or business?

If these items are made to your bespoke specification, then DSRs do not apply.

lorrainp

wealdroam wrote: »

But the point being made was are you a consumer or business?

If these items are made to your bespoke specification, then DSRs do not apply.

I am a consumer. I am not trading in any way, and the contract was made with me as an individual. Nothing in the supplier's T&C's says that transactions are B2B.

So, are you saying that the DSRs don't apply even if I'm not made aware that the items are "personalised" rather than off the shelf? As I explained, similar products from other manufacturers are available off-the-shelf in a variety of sizes, and I was neither informed that these were being custom-made nor sent anything to approve.