Have I lost my rights to return faulty item

NurseMoneySaver1122

We ordered some acrylic panels, which were to be used in place of kitchen tiles, with LED lighting going behind them.

We received the order on 30/09/2013. They came inside a cardboard box, which we removed to check, and all looked ok. However, they also had a protective film over the acrylic, which we did not want to remove (for protection purposes) until fitting.

We removed this film today to fit them (11 days after receiving them), only to discover these smear-like markings over every piece, which cannot be wiped off.

We called them to explain this and request an exchange, but were told that they state on their website we must report any faults within 48 hours, which I believe is against Distance Selling Regulations. Anyway, they have asked us to send pictures of the fault, which we have just done.

It appears this company is going to be difficult, so I want to understand my rights so I know how to deal with them.

I believe Distance Selling Regulations could have helped, but I think you only have 7 days to report faults. Then of course there is the Sales of Goods Act, which I don't fully understand tbh.

So my question is:

Bearing in mind I have reported the fault to them 11 days after receiving the goods, what rights do I have/what Acts apply to my circumstance?

Do the Distance Selling Regulations, Sales of Goods Act or any other Act apply to my particular circumstance, and if so how?

ThumbRemote

The Sale of Goods Act states that you can reject goods if they do not conform to contract. The act doesn't state a set period of time for this; it's just considered a reasonable period of time. Some retailers state 30 days - certainly 11 days when it's DIY goods and you've got an explanation isn't unreasonable.

Is it definitely a fault, and not part of the design?

I'd tell them in writing (so you have a paper trail if needed later) that you wish to reject the goods under the Sale of Goods act. You are entitled to a full refund, including postage, and they need to arrange a return.

frugal_mike

Right, the Distance Selling Regulations give you 7 working days to cancel the order, but there are some things that effect when that period starts. Regulation 8 says that the company has to supply you with various bits of information in durable form (so putting it on their website does not count). This information includes informing you of your right to cancel the contract, and various other bits.

* If they supply you with this information then the 7 working day period starts the day after you receive the goods (so ended on Wednesday in your case).

* If they don't provide the information before you receive the order then the 7 working days starts the day after they do provide it, up to a maximum of 3 months.

So if they did not provide the information then you can cancel under the distance selling regulations, but if they did you cannot.


Now the Sale of Goods Act gives you the right to reject faulty goods before 'acceptance' occurs. There is no strict definition of when that happens, but it happens after a 'reasonable' time or when you do something inconsistent with the sellers ownership of the goods.

Whether or not 11 days would be considered to be more than a reasonable time I have no idea. It's not completely unreasonable though, especially if you still have unsealed tiles so can show that you didn't mark them.

NurseMoneySaver1122

ThumbRemote wrote: »

The Sale of Goods Act states that you can reject goods if they do not conform to contract. The act doesn't state a set period of time for this; it's just considered a reasonable period of time. Some retailers state 30 days - certainly 11 days when it's DIY goods and you've got an explanation isn't unreasonable.

Is it definitely a fault, and not part of the design?

I'd tell them in writing (so you have a paper trail if needed later) that you wish to reject the goods under the Sale of Goods act. You are entitled to a full refund, including postage, and they need to arrange a return.

Oh it's definitely a fault and not part of the design. It's supposed to be plain acrylic panels but has the occasional marking apparent in random places. Even to the untrained eye like myself, it is clearly not supposed to be that way.

They requested photos of the fault so we reiterated everything we had discussed by phone in that email, so we have that paper trail. I haven't yet quoted any laws though, hoping I won't need to, but judging by how they dealt with us on the phone I feel I may need to, so wanted to know my rights.

NurseMoneySaver1122

Repeated post

NurseMoneySaver1122

So judging by your replies, I would be better to quote the Sale of Goods Act, as opposed to the Distance Selling Regs (as its over 7 days from receipt of goods)?

Bit worried they may try and claim the goods were 'accepted' though, whether that be by removing the protective film, or by taking 11 days to inform them of the fault.

However, it's clear we have not used the panels, they have to be either stuck to the wall or physically attached another way, and it is clear we have not done that. But we have of course taken the protective film off though, which is how we discovered the fault.

paddyrg

I think 11 days is on balance going to appear reasonable to a judge if it ever came to court, it's not like it's even a fortnight. Remind the company that you're not trying to wheedle out of using their product, you just want one that they themselves would want to represent their quality, and a straight swap for nondefective panels is all you require. If the fault is a clear manufacturing fault from poorly mixed plastics for instance they'd have to have a lot of balls to claim that was unreasonable!

lindatrole

It might work in this way.

paddyrg wrote: »

I think 11 days is on balance going to appear reasonable to a judge if it ever came to court, it's not like it's even a fortnight. Remind the company that you're not trying to wheedle out of using their product, you just want one that they themselves would want to represent their quality, and a straight swap for nondefective panels is all you require. If the fault is a clear manufacturing fault from poorly mixed plastics for instance they'd have to have a lot of balls to claim that was unreasonable!

frugal_mike

NurseMoneySaver1122 wrote: »

So judging by your replies, I would be better to quote the Sale of Goods Act, as opposed to the Distance Selling Regs (as its over 7 days from receipt of goods)?

Bit worried they may try and claim the goods were 'accepted' though, whether that be by removing the protective film, or by taking 11 days to inform them of the fault.

However, it's clear we have not used the panels, they have to be either stuck to the wall or physically attached another way, and it is clear we have not done that. But we have of course taken the protective film off though, which is how we discovered the fault.

If they delivered the required information that Regulation 8 says they must provide, and they gave you that information in durable means (for example by email, or on paper as part of the delivery note) then you are out of time to claim under the Distance Selling Regulations.

If they have not supplied you with that information then you are well within time to under the Distance Selling Regulations.

Either way you would still want to reject under the Sale of Goods Act. By doing that they have to pay for return postage to them.

Taking the protective film off would not be 'acceptance' in my opinion. I would avoid taking any more of the seals off now you know they aren't acceptable, but it is perfectly reasonable for you to inspect them.

unholyangel

Them saying they're not liable because you didn't notify them within 48 hours is an unfair contract term and as such, is legally unenforceable. It can actually be a criminal offence.

2.4.3 Prompt notification of complaints is desirable because it encourages successful resolution and is therefore to be encouraged. But taking away all rights to redress is liable to be considered an over-severe sanction for this purpose. Where goods are supplied, use of such a term is legally incapable of producing that effect and may amount to an offence, because it serves to restrict the consumer's statutory rights – see paragraph 2.1.1.
2.4.4 Any fault found in goods within six months of the date of sale is assumed to be the supplier's responsibility unless he can prove otherwise. It is therefore particularly misleading for contract terms to seek to exclude or limit the consumer's right to redress for faulty goods during the first six months after purchase. As noted above (page 11) the use of misleading terms may give rise to enforcement action as an unfair commercial practice.

And from the annexes (of unfair contract terms guidance by OFT):

Original term
… the Customer shall … give Maples written notice of such loss or damage with reasonable particulars thereof within 3 days of receipt of the Goods.
Action taken
New term: … You must tell us about any fault or damage as soon as is reasonably possible.

Original term
Faulty goods will be exchanged if returned or notified within 7 days from the date of invoice and returned in original, clean and full packaging.
Action taken Term deleted.

Original term
Written notice of any defect in the goods when delivered shall be served upon the company within 7 days of delivery. The Customer shall be deemed to have accepted the goods 7 days after delivery.
Action taken
New term: The Customer is asked to examine the goods as soon as reasonably possible after delivery and notify the Company of any fault or damage as soon as reasonably possible.

As you can see, OFT have made companies change their terms where they state 7 days as a time limit, so I have no doubt that 48 hours is definitely an unfair term.

NurseMoneySaver1122

Right as expected, were not getting anywhere and I'm back with more questions.

So far we've emailed them the photos they requested, heard nothing, so called them on Tuesday and they apologised saying it hadn't been looked at yet, but that they will speak to their manufacturer.

So we resent the email that day (Tue) and attached the photos again. But hadn't heard anything again, so called them again yesterday. He apologised again and said they are short staffed at the moment but will speak to their manufacturer. We explained that they said that last time, but he reiterated that they would do so.

I don't understand how long we are expected to wait to get this resolved.

Can I set them a deadline in which to respond to my request, under the Sale of Goods Act, or something similar?

Who do I report them to (and threaten to report them to), if it is not resolved within this time? Would it be trading standards, OFT, or someone else?

Thanks so much for all your help so far and sorry there are more questions. Any help would be really appreciated again