Tricky Return

vaio

a refund is the minimum that is going to be required but it might well not be *all* that is required as consequential costs are covered too.

Examples might be the costs of installing or reinstalling the faulty goods, other costs involved in returning them, hire costs of a replacement whilst awaiting repair repair/replacement or, as in this case, the cost of obtaining a replacement.

marliepanda

I believe you are talking about loss of bargain, something which is by no means clear cut or easy to claim

http://www.legalbeagles.info/forums/showthread.php?26154-Loss-of-Bargain-clarification

Shows just how odd it can be, for the sake of, if I remember correctly, £60, you would have to go to small claims, and there is a high chance the judge would throw it out because the OP got everything back they laid out. If extra money was being paid out all the time no shops would sell anything cheap, in case one came back faulty and not only did they have to refund, but pay an additional chunk of money for them to go buy from someone else.

vaio

Lifted from the legalbeagles site...

...When a supplier fundamentally breaches the terms of a contract, the customer has a choice either to treat the contract as still in existence, (affirming the contract) or terminate and seek damages for repudiation at common law. Lord Justice Moore-Bick stated in Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] "It is inherent in the nature of a legally binding contract that each party expects to obtain the benefit of the bargain into which he has entered, or, if the contract is not performed, a right to recover compensation in the form of damages for the loss of that benefit. Accordingly, in a case where one party's breach is such as, in the words of Diplock L.J. in Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962], to deprive the other of substantially the whole benefit which it was intended that he should obtain from the contract, the common law recognises the right of the injured party to treat the contract as discharged and to recover damages for the loss of the bargain."

You could get the goods elsewhere, but you would lose the value of the deal you have struck. The loss of bargain in this case is would be the difference between the normal selling price of the television and the price at which the contract was made with the online retailer. However, do bear in mind that as a claimant you have a duty to mitigate your loss and this means that a court would expect you to calculate the amount of loss by means of where else you could buy the television for and for how much. As such, if you can find the product cheaper, then the loss of bargain will be calculated from this lower figure and you may not have lost as much as you thought.

This system is also set out in the Sale of Goods Act 1979 at section 51 - Damages for Non-delivery:

"51(3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or (if no time was fixed) at the time of the refusal to deliver."

However, before you issue a claim against the seller and depending on how you paid for the television, you may issue a claim against your credit card issuer. Section 75 of the Consumer Credit Act 1974 allows this because any claim you make would be based on a breach of contract. Section 75 of the Act makes a connected lender jointly and severally liable with any supplier for any breach of contract or mis-representation by the supplier. The provisions apply to any single item to which the supplier has attached a cash price of between £100 and £30,000. Thus your card issuer is potentially liable not only for the value of the card transaction itself but also the value of the item (if greater) and any consequential losses caused to you arising from the breach or misrepresentation.

This might be a great deal simpler than issuing a claim in the County Court against the supplier, but it is dependant upon you having paid for the television with a credit card.

Regardless of how you paid, your claim for loss of bargain looks pretty good, since it is clear that the contract was made, the goods were delivered but have failed to conform to contract. In addition, it should be noted that 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.....

The s75 angle is interesting too and might well be easier & less risky than small claims

powerful_Rogue

Wouldnt be an option as OP only spent £90. Minimum for S75 is £100.

vaio

true, I'd forgotten the original cost was <£100

shak2

Fascinating stuff, so it looks like I was right then...I might have a case?

Breach of contract...which they did do, because when purchasing they take your money it becomes a contract to supply goods...and they didn't do that because they just refunded my money and kept the faulty item...when I expressly told them I wanted the faulty item returned if they couldn't replace it...

Does it stand a real chance of winning though?

neilmcl

shak2 wrote: »

Fascinating stuff, so it looks like I was right then...I might have a case?

No you weren't and no you don't for the reasons already expressed in the numerous posts you've chosen to ignore. But as you feel different by all means start by sending out a letter before action before going down the legal route.

powerful_Rogue

shak2 wrote: »

Fascinating stuff, so it looks like I was right then...I might have a case?

Breach of contract...which they did do, because when purchasing they take your money it becomes a contract to supply goods...and they didn't do that because they just refunded my money and kept the faulty item...when I expressly told them I wanted the faulty item returned if they couldn't replace it...

Does it stand a real chance of winning though?

You've decided to ignore all the advice and evidence people have given you in the hope someone might post what you want to hear.

Ok, so you've heard something you like. What you going to do next? Only available option is to file a claim with the small claims court. Be advised it will cost you money and in my opinion you will lose.

halibut2209

There is no "loss of bargain" here. This is a case of faulty goods and the only relevant legislation is the SOGA, which specifically states that the seller can refuse a remedy if another remedy is more cost-efficient. A refund is completely, and legally acceptable.

Do you really think that, for example, any goods sold in a sale which became faulty would entitle you to a refund of the non-sale price?

Spank

Shak2 at some point your going to have to accept that the company has done nothing wrong & it's going to cost you an extra £50 to get your item (or wait till somebody has a sale)