What are my options?

barrowvian

Hi,

Within the last month (28 days ago) I received two radiators I bought online. Not being a plumber myself, checking for anything other than simple cosmetic damage is beyond me. Anyway, I had an appointment with the plumber (about 25 days after receiving the item). He fitted one no problem. He then told me that the convector on the other item was damaged and would recommend replaicing it with a non damaged one before going ahead with the works. Made plenty of sense to me.

Anway, I contact the company (on the 28th day since receiving the item) and told them I'd be advised it was damaged and would like a replacement. The company told me that because it's outside the 14 day cancellation window they won't accept it back. However, I wasn't calling to cancel, I was calling because the item is damaged.

I protested but never got anywhere with it. So now I have a damaged item just sitting in its packaging.

What kind of chance do I have if I wanted to push with the Small Claims Court?

I read on one of the MSE blogs that I have within 30 days to notify the company and advise them that the item is damaged. By doing so I am within my rights of the Sales of Goods Act 1979 and the company in questions has a responsibility to replace, repair and refund my item.

Any advise would be much appreciated, thank you.

unholyangel

The 14 days refers to cancellation rights under CCRs.

However as you quite rightly noticed yourself, this isnt to cancel, its faulty and therefore is covered under the sale of goods act.

In the soga, where acceptance has not occurred, the consumer can demand a full refund. If acceptance has occurred then you lose the right to demand a full refund however you're still entitled to a remedy - which can be repair, replacement, refund (even partial to take into account usage) or a reduction in price.

The soga states that any fault found in the first 6 months is assumed to be inherent and it is for the retailer to prove otherwise.

If you paid by credit card and the item was over £100 (i mean for the unit affected, not the total order price) then you can also approach your card issuer about a section 75 claim.

You can also write a letter before action to the retailer.

barrowvian

Thank you for the advice.

What would constitute acceptance of the item, in this case a radiator? The companies T&Cs state I should have inspected the goods within two days and notified them, and again 14 days for cancelling. However, is it reasonable to assume that not being a plumber I have literally no idea what looks like a broken convector and what doesn't, hence why I never raised this claim sooner. I'm guessing this 'acceptance' is going to be where I win or lose this argument.

I've read that I have within 4 weeks to return the item if I find a fault, which I have.

Unfortunately I didn't pay with a CC and it's under £100 for the single item.

unholyangel

barrowvian wrote: »

Thank you for the advice.

What would constitute acceptance of the item, in this case a radiator? The companies T&Cs state I should have inspected the goods within two days and notified them, and again 14 days for cancelling. However, is it reasonable to assume that not being a plumber I have literally no idea what looks like a broken convector and what doesn't, hence why I never raised this claim sooner. I'm guessing this 'acceptance' is going to be where I win or lose this argument.

I've read that I have within 4 weeks to return the item if I find a fault, which I have.

Unfortunately I didn't pay with a CC and it's under £100 for the single item.

soga itself states:

(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.

What is a reasonable time is a question of fact - meaning it can only really be decided by a judge taking into account the relevant circumstances.

There is more i'm going to post from unfair terms guidance but I just wanted to repeat that accepting the goods does not mean that you have no right to a remedy - it only means you cannot rescind the contract for a full refund.

2.4.2 The OFT is likely to object to a term that frees the supplier from his
responsibilities towards the consumer where the consumer does not make a
complaint immediately or within an unduly short period of time. This applies
particularly where:
(a) a time limit is so short that ordinary persons could easily miss it
through mere inadvertence, or because of circumstances outside
their control, and
(b) faults for which the supplier is responsible which could only become
apparent after a time limit has expired.

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.

2.4.5 A statement that statutory rights are unaffected, without explanation, will
not make such a term acceptable to the OFT– see paragraph 1.5. A better approach is to insist on prompt notification in such a way as not to restrict
consumers' legal rights. One way to do this is to require notification of a
complaint within a 'reasonable' time of (or promptly after) discovery of a
problem.
2.4.6 There is similarly no objection to a term warning consumers of the need to
check to the best of their ability for any defects or discrepancies at the
earliest opportunity, and take prompt action as soon as they become aware
of any problem. Concerns do not arise so long as there is no suggestion
that the supplier disclaims liability for problems which consumers fail to
notice.

2.3.2 In a contract for the sale of goods, use of a term either excluding or
restricting consumers' statutory rights is always ineffective in law
regardless of its fairness, and its use may give rise to enforcement action
as a misleading commercial practice (see above, page 10), in the same way
as the use of a term which excludes such rights altogether.

2.1.1 Any business selling goods to consumers is legally bound to accept certain
implied obligations, whatever the contract says. These are the consumer's
'statutory rights'. Goods must match the description given to them, and be
of satisfactory quality and fit for their purposes. Contract terms which
deny consumers the right to full compensation where goods are
misdescribed or defective are liable to be considered unfair under the
Regulations, and are void and unenforceable under other legislation.

2.1.2 As well as potentially being unfair under the Regulations, the use of such
disclaimers is liable to mislead consumers about their statutory rights. As
such, it can give rise to enforcement action as an unfair commercial
practice (see above, page 11).

2.1.3 See Group 1 for the OFT's objections to disclaimers generally. Note that
these apply to any term, whatever the form of words used, or the legal
mechanism involved, which has the object or effect of protecting the
supplier from claims for redress for defective or misdescribed goods. It is
also important to note that a statement that statutory rights are not
affected, without explanation, cannot make such a term acceptable to the
OFT.

2.1.4 A variety of different types of wording can have the effect of excluding
liability for unsatisfactory goods. For example,
• Terms saying that the goods must be (or that they have been)
examined by the consumer, or by someone on his behalf.
Consumers cannot be legally deprived of redress for faults in goods
(except obvious faults) other than by having the faults specifically
drawn to their attention before purchase.
• Terms requiring that the goods are accepted as satisfactory on
delivery, or imposing unreasonable conditions on their return.
Consumers have a right to a reasonable opportunity to examine goods
and reject them if faulty. In the case of complex goods, a reasonable
opportunity to examine means a chance to try the goods out.
Consumers cannot legally be deprived of this right by being required to
sign 'satisfaction' notes on delivery, or by being required to return
goods in a way that may not be possible – for example, in disposable
packaging that they are likely to discard after opening.
• Terms which end rights to redress after the consumer has dealt with
the goods in a particular way.
Even where goods have been legally 'accepted', for example, by being
used repeatedly or modified in some way, the supplier remains liable to provide redress if they subsequently prove to have been defective
when sold.