Refusal to Refund

timw19771

Hi guys

New here so apologies if this is posted in the wrong area. (also posted on CAG)

I purchased an expensive item from a boutique shop on 20/1. When I got the item home and assembled it I noticed a number of defects. I phoned the retailer the next day and explained and said I would return the item on Saturday (26/1) as this was the soonest I could get it to them. (Due to work commitments).

When I returned the item the retailer would not give a refund, instead saying that their policy was to replace the item. This I refused as given conisderation to the price paid the item was so expensive that I did not believe the quality was sufficient in any event (it was that bad and THAT expensive!) I explained that I believed I was entitled to a refund under the Sales of Goods Act as the item was not of satisfactory quality. To cut a long story short the exchange resulted in me being "man handled" from the shop, without any refund and the retailer with the item still.

I have since written to the retailer to explain that I have rejected the items under the Sales of Goods Act as it was not of satisfactory quality and want a full refund. it really was such poor quality so I am not worried about any debate around what a "reasonable person" argument as given the price etc it was far from perfect. I didnt notice the defect in the shop however didn't inspect the item to any degree - the retailer dismantled the item and packaged it - so would assume that he either a/ didnt notice the defects (I find hard to believe) or b/ chose to ignore them (much more likely in my opinion) (the defects would not have been noticed until came to dismantling or assembling the item)

The retailer has ignored my letter / request - I know they received it as I emailed it and also hand delivered a copy directly to the owner of the store (the man that sold the item and refused the refund).

I have since, unfortunately had to submit a claim to the small claims court. Given the price of the item I am really worried about losing although I genuinely believe I am in the right.. however given the retailers utter arrogance I am worried that I am missing something and that they have some way out of this and forcing me to accept a replacement (which out of sheer principal I do not want - a/ the craftmanship on the item is poor, as was the replacement he tried to fob me off with - I inspected it very briefly (well part of it as it was in packaging) and it had defects that I pointed out to him at the time - his attitude was "well, you're going to say it has defects because you want a refund" - yes, i do want a refund and yes it does have defects!! b/ he is so arrogant out of principal I dont want him to have my money

All advice, views, opinions gratefully received - also if anyone can offer advice or case law to support my case for small claims would be really gratefully received.

Thanks and apologies for the long rant!

Tim

MisterBrico

While there are many people more versed in the laws of the land than me on here there is one thing I spotted that might weaken your claim if I interpreted it correctly.

You say how you went to the store and chose the item out, it was then disassembled before being reassembled by yourself when you looked more closely and noticed the problems?

You may struggle on this point because if the item was available to be viewed and you did not notice these defects you may be deemed to have accepted the item (even if you alerted them and returned it as soon as possible).

However I am sure someone will be along to clarify everything.

I do however wish you the best of luck in your claim.

Moosk

I hope before you started legal proceedings you read SOGA thoroughly.

I'm not an expert, but this doesn't look very promising for you...

https://www.parliament.uk/briefing-papers/sn02239.pdf

If the good does not conform to contract (i.e. is faulty) and the customer has accepted the goods (in the legal sense), under the SGA 1979, the consumer is entitled to:

- claim repair or replacement of the good; if either a repair or replacement is not possible, or the cost is greater than the value of the item (‘disproportionately costly), or either option is taking an unreasonable amount of time, the consumer may be
entitled to:

i. keep the goods and claim a price reduction from the retailer to compensate them for the fault in the goods (this would usually be the difference between the value of the product in perfect condition and the value of the product in faulty condition); or

ii. return the goods and rescind the contract altogether and claim a full or partial refund (depending on whether or not the consumer derived some benefit from the good)

As you where offered a replacement, the retailer has done as required by law. The don't haveto give you a refund, unless obtining the replacement was to take an 'unreasonable amount of time'. This wasn't mentioned in your post so I would assume isn't applicable here as a reason for demanding a refund.

arcon5

Don't worry op.

You appear to be correct in your interpretation and have given them the opportunity to refund you. Should be a straight forward case for the judge.

Under the Sales of Goods Act you get a reasonable period to check it conforms to contract... you rejected the goods as they was not of satisfactory quality. You are therefore entitled to a full refund.

Pre-court protocol asks you send a final demand before issuing a claim (although not actually a necessity, but could affect your ability to reclaim court costs).. you've sent them a letter, even if it isn't headed 'Letter Before Action' i'm sure a judge will see you have acted reasonably first... so all okay.

Next part is obtaining, and if necessary enforcing your judgement.

So lets just wait to see what their defence is now... remember, the burden of proof is on them to prove the goods do conform to contract.

Looking promising so far.

arcon5

Moosk wrote: »

I hope before you started legal proceedings you read SOGA thoroughly.

I'm not an expert, but this doesn't look very promising for you...

www.parliament.uk/briefing-papers/sn02239.pdf

If the good does not conform to contract (i.e. is faulty) and the customer has accepted the goods (in the legal sense), under the SGA 1979, the consumer is entitled to:

As you where offered a replacement, the retailer has done as required by law. The don't haveto give you a refund, unless obtining the replacement was to take an 'unreasonable amount of time'. This wasn't mentioned in your post so I would assume isn't applicable here as a reason for demanding a refund.

Note the crucial bit in bold.

Op notified the shop the next day so will not be deemed to have accepted the goods.

SoGA states:

Acceptance.
(1)The buyer is deemed to have accepted the goods [F35subject to subsection (2) below—
(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.

Op has done neither.

wealdroam

From SoGA...

35 Acceptance.(1)The buyer is deemed to have accepted the goods subject to subsection (2) below—
(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.

As the OP had examined the goods before deciding to make the purchase, surely it is possible that acceptance took place at the time of purchase.

Not sure about that phrase Where goods are delivered to the buyer either.
We know the Op collected the goods at the time of purchase.

shaun_from_Africa

wealdroam wrote: »

Not sure about that phrase Where goods are delivered to the buyer either.
We know the Op collected the goods at the time of purchase.

For purposes of the SOGA, delivery simply means transfer of goods from seller to buyer and not delivery in the sense it is generally used (ie, delivery by post or courier).
If you buy something in a face to face transaction in a shop, the item has been delivered once it has been given to you.

SOGA Interpretation.

“delivery” means voluntary transfer of possession from one person to another ; [F3except that in relation to sections 20A and 20B above it includes such appropriation of goods to the contract as results in property in the goods being transferred to the buyer

visidigi

The problem the retailer has is the replacements were also faulty/poor quality.

The retailer could build a defense on the fact that all items were of this nature and this was part of the design/finish of the product. If it isn't then...

I highly expect though that the retailer will be called on the fact that under SOGA they have to provide a resolution and refusing a refund is not inline with that process given that the replacement offered was also substandard.

timw19771

Thanks for all the responses. My argument would be that I couldn't reasonably inspect the item in the store as it was in a corner, lighting wasn't great etc... Also fault wasn't immediately apparent until I could inspect it properly at home.

We are also talking about an item that cost in excess of £1500

wealdroam

timw19771 wrote: »

Thanks for all the responses. My argument would be that I couldn't reasonably inspect the item in the store as it was in a corner, lighting wasn't great etc... Also fault wasn't immediately apparent until I could inspect it properly at home.

We are also talking about an item that cost in excess of £1500

I understand entirely what you are saying, but seriously...

You couldn't inspect the thing because of the poor lighting, so you decided to take a gamble of over one and a half grand?
Sorry, but I find that difficult to believe.

timw19771

wealdroam wrote: »

I understand entirely what you are saying, but seriously...

You couldn't inspect the thing because of the poor lighting, so you decided to take a gamble of over one and a half grand?
Sorry, but I find that difficult to believe.

Oh the benefit of hindsight. So an upmarket boutique shop in a nice town, a shop that has been around for over 30 years. Owner says any problems you can return it. Thinking that Sales of Goods Act entitles me to a refund if the item isn't if satisfactory quality.... At the time I didn't view it as a gamble. Now? Well now I wouldnt touch the bloody place with a barge pole