Delivery of damaged goods - no refund?

visidigi

Then in that case throw their own terms back at them - the damage was not visible without touching the item on top and removal. therefore a term of

"Unless otherwise stated the signature confirms that the pallet have been delivered in a satisfactory condition and free from any visible sign of damage".

is unenforceable.

They need to be addressing your issue and replacing the damaged goods.

FOREVER21

Before going down claiming from credit card route, send a written letter headed "Letter before action" advising that unless they refund within 14 days you intend to take the matter to the small claims court.
In the circumstances you describe this may well show them you intend to proceed regardless of your signature on delivery note.

wealdroam

OP, I guess you haven't read MSE's Delivery Rights article yet.

In there you will find lots of useful stuff including:

My item arrived damaged, I only found out after I signed?

Signing for an item just means it's been delivered. You're not signing on the quality of the item delivered. So even if you found any faults or issues after signing for the delivery, you still have the same rights as with any faulty item.

Of course, if you also signed a delivery note stating you'd examined the goods and they were in perfect condition, but later discovered they were damaged, there could be an argument about whether you were responsible for inflicting the damage after delivery. So if this is the case, it's better to change the wording to 'not examined', so it's clear you didn't have the time to do this - otherwise, inspect 'em carefully.

bod1467

But that article wording is still incorrect ... even signing to say you've inspected does NOT mean you've "accepted" the goods (in the meaning of SOGA). Whilst adding the caveat "not examined" may help, it's not a requirement and not doing so doesn't waive any such SOGA rights.

frugal_mike

bod1467 wrote: »

But that article wording is still incorrect ... even signing to say you've inspected does NOT mean you've "accepted" the goods (in the meaning of SOGA). Whilst adding the caveat "not examined" may help, it's not a requirement and not doing so doesn't waive any such SOGA rights.

The Sale of Goods Act specifically says that acceptance occurs when the consumer informs the seller that they accept the goods. The passage of a reasonable time only applies when the consumer doesn't tell the seller that the goods are accepted.

That said, I would hope a judge would not treat a customer signing a delivery note as actively conferring acceptance, especially when it is not possible to inspect the goods before signing. I would expect there is a very good chance the term mentioned here would be deemed unfair since people would generally expect their signature to be confirmation of delivery, not acceptance of the goods.

hollydays

As already said, unenforceable term.

unholyangel

frugal_mike wrote: »

The Sale of Goods Act specifically says that acceptance occurs when the consumer informs the seller that they accept the goods. The passage of a reasonable time only applies when the consumer doesn't tell the seller that the goods are accepted.

That said, I would hope a judge would not treat a customer signing a delivery note as actively conferring acceptance, especially when it is not possible to inspect the goods before signing. I would expect there is a very good chance the term mentioned here would be deemed unfair since people would generally expect their signature to be confirmation of delivery, not acceptance of the goods.

Actually SoGA says that where the goods are delivered to the buyer and he has not previously examined them, he is not deemed to have accepted the goods under subsection 1 (which relates to the part about saying you accept them) until he has had reasonable time to ascertain that the goods conform to contract.

And unfair terms guidance states:

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.

That was section 2(a). There is also another applicable section of 2(d):

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.

frugal_mike

Subsection 2 does not mention a reasonable time (that doesn't come in until subsection 4), it mentions a reasonable opportunity. Since it sounds like this seller is being awkward they will probably claim that reasonable opportunity was given prior to signing.

Now I fully agree that acceptance hasn't occurred here because there clearly was not a reasonable opportunity to examine the bottom of the pile but am just playing devils advocate for what the company might say if they have read the Sale of Goods Act, and also pointing out that acceptance can occur before the passage of a reasonable amount of time.

unholyangel

frugal_mike wrote: »

Subsection 2 does not mention a reasonable time (that doesn't come in until subsection 4), it mentions a reasonable opportunity. Since it sounds like this seller is being awkward they will probably claim that reasonable opportunity was given prior to signing.

Now I fully agree that acceptance hasn't occurred here because there clearly was not a reasonable opportunity to examine the bottom of the pile but am just playing devils advocate for what the company might say if they have read the Sale of Goods Act, and also pointing out that acceptance can occur before the passage of a reasonable amount of time.

(5)The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.

And theres also this from unfair terms annexe A (for OP - this is basically a list of terms that they have found to be in breach of unfair contract terms and have made them change or delete them):

Original term
Your signature constitutes acceptance that all merchandise and indicates
100 per cent satisfaction as per order.
Action taken
Term deleted

frugal_mike

unholyangel wrote: »

(5)The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.

And theres also this from unfair terms annexe A (for OP - this is basically a list of terms that they have found to be in breach of unfair contract terms and have made them change or delete them):

I'm not sure why you quoted that part of the Sale of Goods Act, it doesn't contradict anything I said. It's setting a lower limit for the term reasonable time as used in subsection 4, but that subsection does not apply at all unless the consumer does not indicate to seller that they accept the goods. The reasonable time could be longer than the time for a reasonable opportunity, but never less. It doesn't define what constitutes a reasonable opportunity though, so that could conceivably happen on the doorstep in some situations.

It's good to see the UTCCR's specifically mention trying to sneakily get the consumer to tell them they accept the goods by hiding the assumed acceptance in the terms and conditions. I said in my first post I thought this shouldn't be taken to be the customer telling the seller they accepted the goods, but I wasn't sure if there was any legal basis for that.

And do note my original post was just in response to someone questioning the MSE article advising to write 'not examined' on delivery notes.