Replacement sink - who pays for plumber to install?

Toxteth_OGrady

keystone wrote: »

But it still isn't a consequentiial loss. Consequential losses are indirect losses. A consequential loss would be inability to use the house because the bathroom was out of action. Labour for replacement is a direct loss.

Additionally I wonder if six months is a "reasonable" timescale for repair or replacement as unfit for purpose under SOGA. Isn't that normally taken to be iro 3 weeks. I think 6 months makes it a warranty issue rather than a SOGA issue.

Cheers

Whether an incidental, direct, indirect and/or consequential loss is debatable but the OP is still legally entitled to remedy for the loss, as it is not remote.

In answer to your second point, OP has to reject goods that do not conform and rescind the contract, i.e. not accept, within a 'reasonable' time (reasonable not defined in law, although next year this may change to 30 days).

In this case OP has accepted goods so next timeline is 6 months. If goods fail to conform to contract within 6 months they are deemed defective at sale unless the seller can prove otherwise (seller's burden of proof).

If goods do not conform after 6 months burden of proof is on the buyer to show they are inherently defective.

In both these case, once seller accepts responsibility the seller has the right to choose repair, refund or replace, whichever is most economical to the seller, providing the course of action does not cause unreasonable delay or inconvenience to the buyer.

That is to an extent moot in this instance because the buyer has been given remedy for defective goods and is entitled to pursue damages for the additional cost of re-installing.

keystone

Toxteth_OGrady wrote: »

Whether an incidental, direct, indirect and/or consequential loss is debatable but the OP is still legally entitled to remedy for the loss, as it is not remote.

well I don't see it as debateable tbh seeing as theres no way that this circumstance represents consequential loss as you rather forcibly (:D) insisted it did which is why I challenged your statement. I'll bet a brass farthing that the merchants Ts&Cs on the back of the invoice specifically exclude liability for consequential loss anyway.

and is entitled to pursue damages for the additional cost of re-installing.

Maybe but if OP has any sense waving a copy of SOGA under the guys nose is hardly likely to get cooperation. Telling him nicely that its going to cost £ 100 (or whatever) and asking if perhaps he would care to help with these costs is far more likely too.

Cheers

vaio

keystone wrote: »

well I don't see it as debateable tbh seeing as theres no way that this circumstance represents consequential loss as you rather forcibly (:D) insisted it did which is why I challenged your statement. I'll bet a brass farthing that the merchants Ts&Cs on the back of the invoice specifically exclude liability for consequential loss anyway. .......

not allowed in business to consumer sales (unfair Contract Terms Act I think)

Business to business can agree whatever terms they like but consumers are protected by the law

southcoastrgi

I still disagree you will get fittings costs, it would be useful if the OP could tell us the exact nature of whats wrong with the basin/basin unit

Dimey

iandv wrote: »

Thanks all - we bought it as a consumer from a builders merchants and paid for a plumber to install

So what would you say to the builders merchants, can you install it?

My approach with the builders merchant would be to assume he will replace the faulty sink and make good.

I would ask the builders merchant when their plumber will be coming to replace the sink as you need to book time off work to be there.

If they quibble then you could offer to get the original plumber to supply the builders merchant with a quote to do the labour for them.

All assumptive that part of the agreement to replace the faulty unit is actually doing the replacement and making good.

If you really run into a big row and can't be bothered to fight then you could allow the sink to be delivered, pay for the installation and send the builders merchant the bill.

If they don't pay then either write it off or keep chasing adding interest till you get bored. I wouldn't bother with Small Claims.

keystone

vaio wrote: »

not allowed in business to consumer sales (unfair Contract Terms Act I think)

Business to business can agree whatever terms they like but consumers are protected by the law

and the vast majority of the Merchants Sales will be BtoB so its almost inevitable that consequential loss will be excluded on standard paperwork. Has this customer paid a trade price rather than a retail price? If they'd paid retail then I would have more sympathy with the viewpoint. SCs cake and eat it too analogy spring to mind. The law is sometimes an [STRIKE]!!![/STRIKE] short three letter word beginning with "a" that means something similar to a donkey - stupid forum censor software!

I also really think that people should start to understand what terms like consequential loss actually mean before bandying them about - no I don't mean you.

At the end of the day with all plumbing in place and a straight swap we are probably talking less than £ 100 here not £ 000s. Perspective and proportion and sheer common sense disappear all to easily. Second para of Post 13.

Cheers

Toxteth_OGrady

keystone wrote: »

and is entitled to pursue damages for the additional cost of re-installing

Maybe but...

Tacit agreement followed by a poor attempt to circumvent with an erroneous non sequitur.

Notwithstanding the obfuscation and the weakening of your earlier intransigence, there is no "'Maybe." The OP's costs of re-installation are a reasonably foreseeable loss arising from the seller's breach of contract in supplying goods of unsatisfactory quality. As such, SOGA and common law cater for the recovery of the loss from the seller, providing the buyer has taken reasonable measures to mitigate the loss.

keystone wrote:

I'll bet a brass farthing that the merchants Ts&Cs on the back of the invoice specifically exclude liability for consequential loss anyway.

keystone wrote:

and the vast majority of the Merchants Sales will be BtoB so its almost inevitable that consequential loss will be excluded on standard paperwork. Has this customer paid a trade price rather than a retail price? If they'd paid retail then I would have more sympathy with the viewpoint.!

Being almost inevitable doesn't make it lawful. Anyway as the OP stated in #2:

iandv wrote:

we bought it as a consumer from a builders merchants

In a B2C contract, a seller cannot limit or exclude any liability that would diminish the consumer's statutory rights. If the seller were to include such a disclaimer in a consumer contract, it would not be legally valid since it would be voided by consumer protection legislation, such as The Unfair Terms in Consumer Contracts Regulations 1999. In addition, because the consumer may not be aware that it is not legally valid, not only would such a term be pointless, it could be misleading. This may make it unlawful as an unfair commercial practice under see The Consumer Protection from Unfair Trading Regulations 2008.

keystone wrote:

waving a copy of SOGA under the guys nose is hardly likely to get cooperation.

Agreed. I have not advocated any specific course of action; I am merely outlining the OP's consumer rights. The way in which these are exercised should only be considered once they are understood.

Telling him nicely that its going to cost £ 100 (or whatever) and asking if perhaps he would care to help with these costs is far more likely too.

Useful advice. That could be a sensible opening gambit, providing one is aware of one's rights in the event that the seller is less than helpful.

In fact your suggestion is broadly similar to the advice MSE Martin and MSE Wendy already give in their article on how to complain:

Step 1: Complain in person.
When starting a complaint it's best to not go militant, unless you have to. The first easy step is to go back to the shop or phone the call centre and explain the problem and your suggested resolution. If you go in with gusto, saying you know what your rights are, chances are the store will sort your problem in a flash

The advice the OP has had now ranges between pay the re-installation cost, see what can be negotiated in good faith with the seller or use consumer rights to recover the cost.

The conflicting views are probably too polarised to reach consensus but at least the OP can make an informed choice on how to follow this up.

In terms of practical advice, what would I do in this case?

A face-to-face chat with the seller to ask them how they plan to remove the faulty sink and fit the replacement. I would ask if they wanted to arrange it themselves or for me to get three quotes (a reasonable measure to show I'm trying to mitigate my loss), have the work completed by a third party and invoice them for it.

If they were to insist at this point that they would not pay I would follow up with normal letter/email asking them to reconsider their position and then, if no joy, Letter Before Action. If that did not have the desired effect I would personally cut and run as, in this instance (£100 or so), it becomes a diminishing return that is not worth further level of effort.

keystone wrote:

I also really think that people should start to understand what terms like consequential loss actually mean before bandying them about - no I don't mean you.

Would I be right in inferring that you are implying me? You are trying to use a circular argument and semantics to cloud the issue.

My position is clear. The OP is legally entitled to damages to recover the cost of re-installing the sink.

So far from you we have had a

southcoastrgi wrote:

I think you will find you are wrong

keystone wrote:

agree with the post above

to a

keystone wrote:

Maybe

and a

keystone wrote:

If they'd paid retail then I would have more sympathy with the viewpoint.

Perhaps you could state your position unequivocally on whether or not they are entitled to remedy in law for their loss?

I'm still not sure whether you agree they are, because it is a direct labour cost, as you previously implied, or you disagree because the loss is too remote?

@keystone - As much as I enjoy debating this with you I think it's fair to say we are both trying to help the OP. :beer:

As you say the law may be that synonym for a donkey but if the OP is unjustly out of pocket through no fault of their own, it also enshrines some fine principles, particularly for consumers.

I'll let others judge whether either or both of us are falling foul of the 'First Law of Holes' that you seem to enjoy posting!

warmhands.coldheart

Any chance we could establish what exactly was faulty with the unit OP??

martinsurrey

Toxteth_OGrady wrote: »

My position is clear. The OP is legally entitled to damages to recover the cost of re-installing the sink.

If the buyer requires the seller to repair or replace the goods, the seller must—

(a)repair or, as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer;

(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage)....

The OPs contract with the merchant was for the supply of the unit, not supply and fit.

so in the above the goods are "supply of sink", NOT fitting of sink.

they can meet the requirements of thier contract by supplying another unit, what then happens is down to the OP to foot the bill.

If I bought a sink from a merchant and sent it to the moon, and it turned out to be faulty, the merchant wouldnt be contacting NASA to arrange his own launch!

however, if I paid the merchant to supply and fit a sink on the moon, he would have a long return journey to replace it.

Toxteth_OGrady

martinsurrey wrote: »

The OPs contract with the merchant was for the supply of the unit, not supply and fit.

so in the above the goods are "supply of sink", NOT fitting of sink.

they can meet the requirements of thier contract by supplying another unit, what then happens is down to the OP to foot the bill.

If I bought a sink from a merchant and sent it to the moon, and it turned out to be faulty, the merchant wouldnt be contacting NASA to arrange his own launch!

however, if I paid the merchant to supply and fit a sink on the moon, he would have a long return journey to replace it.

Hadley v Baxendale.

Your analogy would not pass the test of the first or second limb.