Sale of damaged goods

MangoStan

Hi,

Sorry if this has been answered previously on this forum - I tried searching but didn't come up with the exact information I was after and wanted to be sure so would be grateful if anyone could help me

I picked up a pair of earrings in a large chain store that were clearly bent; I asked a sales assistant on the shop floor if there were any more and she said unfortunately not, but if I took it to the till, I would get a discount. I did, and the sales assistant at the till offered 10% and I asked if that was all she could offer since they only cost £3-something (which I know I was a bit cheeky, but you never know!). She asked the manager next to her who flat-out refused to give any discount, claiming that if they put the item back out, someone would buy it at full price, and that they were not "damaged enough" to warrant any price reduction.

Should goods not be fit for purpose/of satisfactory quality when sold? Does the SoGA really stipulate a degree of damage; I thought it was either of satisfactory quality or not? I was also wondering if a seller could sell goods with a known fault without notifying the customer prior to purchase, as the manager of this shop was suggesting she would do?

Usually when I've pointed out a fault in an item I wish to buy, I've been offered a discount without even asking so I just wanted to clarify what was right here as I wasn't sure!

Thanks very much,

Stan

arcon5

Should goods not be fit for purpose/of satisfactory quality when sold? Does the SoGA really stipulate a degree of damage; I thought it was either of satisfactory quality or not? I was also wondering if a seller could sell goods with a known fault without notifying the customer prior to purchase, as the manager of this shop was suggesting she would do?

Yes damaged goods can be sold. If this fact is presented to you and you purchase the goods knowing this then they are sold as such and you cannot at a later date demand a refund or remedy claiming the goods are not fit for purpose.

If somebody wishes to purchase damaged goods then that's fine. Look at the motor industry for example... it's easy to buy a car on a 'spares or repair' basis, therefore it's purpose is not to be used for driving, but the purpose being it being broken or it being restored to a road worthy condition.

If the customer was not aware of the fact they was damaged - and of course assuming the damage wasn't as obvious as say a bumper missing (reverting back to the above example) then you would have a 'reasonable' time after the purchase to inspect the goods conform to contract and if necessary reject them.

SoGA does though state the following when it comes to rejecting goods:

(b)the breach is so slight that it would be unreasonable for him to reject them,

Meaning in the event the mis-description is completely immaterial then you cannot reject the goods. What would be classed an unreasonable is very ambiguous - back to the car example... if the indicator bulb was amber when viewing, then on collecting was amber/white

MangoStan

Thanks for the info. I guess I was thinking that if you bought something only later to discover it was damaged, how would the seller know whether it came like that or was damaged by the customer subsequent to purchase? My mum just had that problem when she tried to return a pair of tights that came with a hole in them only visible after removing the packaging.

I can understand purchasing items that are marked as faulty. In my instance, the earrings were just returned to the rack with no notification of damage, so I'm guessing that the next person to pick them up wouldn't have been made aware of this?

wealdroam

MangoStan wrote: »

...so I'm guessing that the next person to pick them up wouldn't have been made aware of this?

But they would soon become aware of it, just as you did...

MangoStan wrote: »

I picked up a pair of earrings in a large chain store that were clearly bent;

Is that not good enough?

arcon5

I guess I was thinking that if you bought something only later to discover it was damaged, how would the seller know whether it came like that or was damaged by the customer subsequent to purchase?

Then it comes down to the burden of proof.

SOGA states:

(3)For the purposes of subsection (1)(b) above goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date.

So it's only after 6 months the consumer should prove the fault is inherent. Within the first 6 months it's considered inherent, leaving the retailer the opportunity to inspect the goods to try prove it was user caused.

Note though this doesn't mean all goods should last 6 months... goods should last "reasonable time".

If though you went back after 5 months saying they are bent and was at time of purchase the retailer may disbelief you (and to be fair it would sound a bit dodgy) and likely dig their heels in and not offer a remedy. If this happens you can pursue it further, but often you may choose not to for small purchases. Although you may find some companies just repairing or replacing to keep the customer happy.

the earrings were just returned to the rack with no notification of damage, so I'm guessing that the next person to pick them up wouldn't have been made aware of this?

In which case they can be rejected for a full refund if they are bent. The law allows 'reasonable' time to inspect and reject goods - after this the retailer can reject your refund request if it is cheaper for them to offer another remedy - a repair or replacement.

My mum just had that problem when she tried to return a pair of tights that came with a hole in them only visible after removing the packaging.

If she returned to the store quickly they should have replaced or refunded. Technically they should have reasonable cause to reject your request - but if something looks like a dog, smells like a dog it usually is a dog (or however that saying goes)... so if after a month or two she took them back then in my opinion it's reasonable for them to reject the return.

MangoStan

wealdroam wrote: »

But they would soon become aware of it, just as you did...

So will the whole situation just repeat and they would never get rid of these earrings at full price? I am wondering if they are correct in selling a damaged item at full price without notifying potential buyers of a fault they are aware of.

wealdroam wrote: »

Is that not good enough?

I'm not sure I understand what you mean: personally I would not choose to pay full price for items that are damaged.

MangoStan

arcon5 wrote: »

Then it comes down to the burden of proof.

SOGA states:



So it's only after 6 months the consumer should prove the fault is inherent. Within the first 6 months it's considered inherent, leaving the retailer the opportunity to inspect the goods to try prove it was user caused.

Note though this doesn't mean all goods should last 6 months... goods should last "reasonable time".

If though you went back after 5 months saying they are bent and was at time of purchase the retailer may disbelief you (and to be fair it would sound a bit dodgy) and likely dig their heels in and not offer a remedy. If this happens you can pursue it further, but often you may choose not to for small purchases. Although you may find some companies just repairing or replacing to keep the customer happy.

In which case they can be rejected for a full refund if they are bent. The law allows 'reasonable' time to inspect and reject goods - after this the retailer can reject your refund request if it is cheaper for them to offer another remedy - a repair or replacement.

I guess what I am still confused about is what applies in a situation that is before a contract is in place between the seller and the buyer. I think that if I had agreed a price with the seller and handed over money, the SOGA would be in effect if the item proved to be of unsatisfactory quality (is that right?). But is this anything to do with a seller's responsibility to sell an item (ie. at the 'invitation to treat' stage) as described? If they are aware of a fault prior to an agreed sale, should they not notify potential customers and state that any reduction in price would mean you cannot return the item for the previously acknowledged fault?

arcon5 wrote: »

If she returned to the store quickly they should have replaced or refunded. Technically they should have reasonable cause to reject your request - but if something looks like a dog, smells like a dog it usually is a dog (or however that saying goes)... so if after a month or two she took them back then in my opinion it's reasonable for them to reject the return.

She took them back straight after Christmas as she only purchased them right before and opened them at Christmas - obviously, the shops were closed so had to go a couple of days later. Manager gave a replacement, but only after a lot of hassle.

arcon5

MangoStan wrote: »

I guess what I am still confused about is what applies in a situation that is before a contract is in place between the seller and the buyer. I think that if I had agreed a price with the seller and handed over money, the SOGA would be in effect if the item proved to be of unsatisfactory quality (is that right?).

Had you not been informed of the defect and had it been reasonable to expect goods to be brand new & unused (for example assuming the shop name isn't damaged goods and stained clothing clearance store or something ) then ye you would have rights under SoGA.

So if they sell it without disclosing the fault, the new owner will have rights.

But is this anything to do with a seller's responsibility to sell an item (ie. at the 'invitation to treat' stage) as described?

I guess they could be considered to be misleading customers by not disclosing material facts that could affect the consumers buying decision. But this would be a matter for the ASA and/or TS - not sure which.

If they are aware of a fault prior to an agreed sale, should they not notify potential customers and state that any reduction in price would mean you cannot return the item for the previously acknowledged fault?

They should. Most shops will have labels on stating the price and fault.

wealdroam

MangoStan wrote: »

So will the whole situation just repeat and they would never get rid of these earrings at full price? I am wondering if they are correct in selling a damaged item at full price without notifying potential buyers of a fault they are aware of.

To repeat... you told us the damage was clearly visible.
Of course they are allowed to sell a damaged item at whatever price they like.
You, like most people would I imagine, decided that was too high a price.

MangoStan wrote: »

I'm not sure I understand what you mean: personally I would not choose to pay full price for items that are damaged.

I can see that you are concerned that they might sell the damaged goods at full price.

You were astute enough to spot the damage and not make the purchase at full price.
Why do you think others might not make that choice?

Note that the Sale of Goods Act says...

...(c)that the goods will be free from any defect, making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample.

Thus if the defect is apparent, and you tell us it clearly is, the buyer has to decide if that is acceptable.

System

It sounds like they weren't bent enough to cause a problem as you were prepared to buy and I assume wear them?

When the item price is £3 any discount seems insignificant. Even 50% off is still only £1.50.

For such a small amount of money I am surprised the discount was such a deal breaker!

MangoStan

arcon5: Thank you for your advice, you've been most informative. I think I understand now!

wealdroom: I think you are misunderstanding me/missing my point, but I think my queries have been answered in the previous post; thanks anyway. I guess I have no idea whether other people would make the choice to purchase but the management were so rude about it and the staff contradicted each other, I was just wondering what was the right procedure(s)!

goater78: I thought maybe I could fix them if the discount was worth it, thus compensating for my time. I have previously negotiated discounts re. broken clothing (eg. zip) so that I could spend the money saved on a repair. We all have our different budgets regarding costume jewellery! I guess I could say in this instance it was also a bit on principle; after being 'teased' with the promise of discount from 2 sales assistants, I was a bit taken aback at how rude the manager was to me - the assistant at the till kept apologising to me because of it. So I just thought I'd forget about the whole idea!