Replacement item or refund ?

[Deleted User]

I bought a Mackie power mixer 6 months ago,cost £300.It has a 3 year warranty.It blew at a gig in early November.I've sent it back to the shop (PMTonline in Southend) and they in turn have sent it back to Mackie.Mackie and the shop have since contacted me and said they are going to replace it with a new one.Well,I've had to buy a replacement in the meantime to do my gigs and don't want a replacement from the shop...I want a refund or else of course I'll have two PA's at a cost of £300 each ! Am I entitled to a refund instead of a replacement ?

USM

No, they have the choice of which remedy they offer.

justifier

when did you purchase the replacement? the place you bought it from may refund it, some places have a "nice" returns policy. otherwise i think you will have to sell it or keep it as a spare.

[Deleted User]

I returned the offending mixer to the shop where they in turn sent it back to Mackie.Mackie informed me that they had sanctioned the shop to issue a new unit to me.That new mixer came last week...and I tried it out in the house...and that didn't work either.It was a different problem to the first one but none the less it didn't work.So I've contacted the shop again and again they said they would give me credit to the amount of £292 but won't give me a refund.I don't need anything else at the moment...but would like my money back.Can I take this to the Ombudsman to try and get a refund?

bris

You certainly don't have to accept the credit note, but they do have the right to give you another replacement. If another replacement is not possible then you would be entitled to a refund.
It seems to me though that you are adamant you don't want the replacement so they are trying to compromise with the credit. If the compromise doesn't work then they will just give you another mixer.

unholyangel

Hmmm would this be classed as a B2B contract since the OP is acting in the course of a business and using the product for business means?

demondave

Hi The Sale of Goods Act 1979 is very clear and the item you bought is not of merchantable quality. You sent it bact to the shop who you have a contract with. They then should have sent you a replacement straight away (if that was what you wanted), but fudged their responsiblity by sending it back to the manufacturer, thus wasting time and forcing you to purchase another product. I understand you now have another product that you do not need and this does not work. As the Act states that you are entitled to a refund, replacement or exchange and it is NOT at the discretion of the shop to dictate which you take. You should put this in writing to them stating the Sale of Goods Act and give then 10 working days to resolve this issue to your liking and if not issue a summons through the small claims court. Do not be pushed around it will not cost you a great deal of money, you have the law on your side and you can claim your costs. In all reality they will cave in at the point of your initial letter. Good Luck.

ThumbRemote

If this was a business purchase it's not covered by the Sale of Goods Act; if it was a personal purchase it is.

No one has yet mentioned that the Sale of Goods Act also states that and repair or replacement must be "within a reasonable time but without causing significant inconvenience to the buyer". To be left waiting 6 weeks is not particularly reasonable, and does cause you significant inconvenience, so you should be able to get a refund.

But (and it's a big but), it seems the inconvenience may be caused primarily because you were using it in a business capacity. So the law becomes a bit unclear, if it was a personal purchase or not.

Myself, I'd insist on a refund and threaten small claims court action unless that was forthcoming.

wealdroam

demondave wrote: »

Hi The Sale of Goods Act 1979 is very clear and the item you bought is not of merchantable quality. You sent it bact to the shop who you have a contract with. They then should have sent you a replacement straight away (if that was what you wanted), but fudged their responsiblity by sending it back to the manufacturer, thus wasting time and forcing you to purchase another product. I understand you now have another product that you do not need and this does not work. As the Act states that you are entitled to a refund, replacement or exchange and it is NOT at the discretion of the shop to dictate which you take. You should put this in writing to them stating the Sale of Goods Act and give then 10 working days to resolve this issue to your liking and if not issue a summons through the small claims court. Do not be pushed around it will not cost you a great deal of money, you have the law on your side and you can claim your costs. In all reality they will cave in at the point of your initial letter. Good Luck.

You are right, the Sale Of Goods Act is clear.

The first point it is clear on is that within the first six months after sale it is for the retailer to prove that the product wasn't faulty at the point of sale. The retailer of course can consult an expert, the manufacturer, on this.

He must do this within a reasonable timescale, without causing significant inconvenience to the buyer. If the buyer has not told the retailer when a significant inconvenience will occur, i.e. when he next needs to use the thing, then the seller has no way of knowing.

SOGA is also clear on the choice of remedy.
The buyer can choose a repair, replacement or refund.
The seller can reject that remedy if it is disproportionately costly.
So, effectively the seller chooses the remedy.

It does seem to me that the buyer has acted prematurely in buying a replacement unit before receiving the result of the seller's/manufacturer's investigation.

Did the buyer give the seller a deadline when he would next need to use the thing?
If not, I fear any claim now for an alternative remedy is bound to fail.

Edited to add... of course this may not apply to b2b sales.

unholyangel

demondave wrote: »

Hi The Sale of Goods Act 1979 is very clear and the item you bought is not of merchantable quality. You sent it bact to the shop who you have a contract with. They then should have sent you a replacement straight away (if that was what you wanted), but fudged their responsiblity by sending it back to the manufacturer, thus wasting time and forcing you to purchase another product. I understand you now have another product that you do not need and this does not work. As the Act states that you are entitled to a refund, replacement or exchange and it is NOT at the discretion of the shop to dictate which you take. You should put this in writing to them stating the Sale of Goods Act and give then 10 working days to resolve this issue to your liking and if not issue a summons through the small claims court. Do not be pushed around it will not cost you a great deal of money, you have the law on your side and you can claim your costs. In all reality they will cave in at the point of your initial letter. Good Luck.

I'm sorry but you clearly have limited knowledge of the SoGA. Providing the SoGA applies (as above, it does not apply to B2B contracts and if op has purchased for business purposes rather than private consumer then SoGA does not apply), the consumer can request one remedy (repair, replace, refund) over another but the retailer can refuse if this is disproportionately costly. So effectively yes, the retailer has the final say in which remedy is offered. Also bearing in mind that any refund issued can be partial to take into account use you have had of the item.

You are ONLY entitled to reject outright for a full refund IF you reject the goods within a reasonable time. I dont think there is anyone who would find 6 months reasonable unless perhaps they were seasonal goods. And i think we we can safely say this isnt the case - especially since the OP has been using them for business purposes to the extent he had to buy a replacement because he couldnt afford to be even a few weeks without one.

I would also keep in mind that if he were to claim in small claims court, he would likely need to show he had tried to mitigate his losses. Did he ask the shop/friends for a loan? Did he convey that time was of the essence to the shop? etc.

[Deleted User]

Thanks for all the replies.I did ask the shop for an immediate replacement as I wouldn't be able to gig without a mixer.Their reply was that they had to send it back to the manufacturer to locate the fault which would and did take two weeks...so if I hadn't bought another mixer from another shop I would have been £450 out of pocket...not to mention maybe losing gigs for next year as a result.
I am self employed and do use the mixer for gigs so how that affects me I don't know.I've googled the Mackie 608 mixer in the last few days and there are dozens and dozens of people who have had problems and returned faulty units.Many think that there are major design faults in them.I'm going to contact the shop again tomorrow,so any more advice on how I should approach talking to them in the next 12 hours, would be greatly appreciated.