Asda don't seem to know what Sale of Goods Act says

hpuse

geerex wrote: »

If you look at my Xbox account just now, my " post code" is 90210. No, i don't live in the USA.

That is probably because your MSN account (ending with .com) was created long time ago before they started offering UK specific accounts once they geo-tag IPs. Sometime ago they defaulted all postcodes to this post codes (including mines, the hotmail account I use was created in the mid 90s!)

daytona0

Azari wrote: »

Maybe you could tell us what 'rights' the SOGA confers upon the retailer - as opposed to options in fulfilling the rights of the consumer or limitations of the rights of the consumer - above normal contract law?

I would imagine that they would have the right, under SOGA, to not be held liable if the customer has scratched too hard... That is the point I'm making, and as a third party (much like a court!) an internet forum would be best served discussing all possible alternatives to determine, on the balance of probabilities, whether it was a SOGA issue or customer damage.

NO.

If you sell someone something that requires them to rub a card to uncover a code then it should be printed in smudge proof ink. No ifs or buts. Otherwise it is not of merchantable quality. It's not as if printing something in that way is difficult.

One of the major purposes of the SOGA was to stop retailer wriggling out of their responsibilities by blaming the customer.

The point I made was regarding the items potentially being made in an identical manner, and the possible instance where only 1 card in a large batch being faulty.

You are right in what you say, though, and I won't argue beyond that except from asking why only 1 is seemingly faulty in a large batch. Suspect?

Well, I would imagine ASDA knows.

Although, we can all be pretty certain that ASDA realised that they didn't have a leg to stand on.

No we can't..... ASDA are a large UK retailer, and giving a replacement card isn't going to break their bank balance. Such a company can afford to give you something just to stop you from hassling them! Not to mention that they stand to make more from you in the long run when you continue to shop with them over the next 30 years, as opposed to you seeing your bum over a gift card and never going back again.

It is therefore impossible for us to tell whether it was a SOGA resolution or a goodwill gesture.

The code was smudged. Unless they could show it had been subjected to some unreasonable treatment (and, note it would be for them to prove that, not for the buyer to prove it hadn't), the item was clearly not of merchantable quality.

As for the 'only one card in the batch' - which, incidentally, unless I've missed something seems to have come entirely from you own imagination - that's just a variation of the tired old: "None of our other customers have complained" routine.

It's entirely irrelevant.

In fairness I would imagine that Microsoft have something in place to deal with "faulty" or un-redeemable cards so yes maybe SOGA applies as normal to these, and ASDA should pursue it with Microsoft.

As for the batch, it is a convincing argument if only 1 unit is faulty in a large batch which were identically created. Whether it can be constituted as "evidence" is debateable though, but you have to agree that these are likely created identically and as such 1 complaint out of 100s is a bit suspect. Oh and just to be clear but 99% of people will complain if this type of item is faulty, so having only 1 complaint would be suspect.

I think that if ASDA were bothered enough then they'd pursue this further, but it isn't worth the effort really.



Don't forget, though, that some people may be inclined to redeem the card before the "fault" develops. Whilst it is unlikely that OP has done this, it is always a possibility and the bottom line is that they would be stealing from another party (I use the word party so we don't lose ourselves in the "big, faceless corporation" mindset). That would be terribly unfair on the retailer, so you can understand their natural reluctance to assist the OP with this query.

geerex

hpuse wrote: »

That is probably because your MSN account (ending with .com) was created long time ago before they started offering UK specific accounts once they geo-tag IPs. Sometime ago they defaulted all postcodes to this post codes (including mines, the hotmail account I use was created in the mid 90s!)

No, it was because I changed it to take advantage of cheaper prices on the Xbox USA marketplace. Nice try though.

The whole postcodes discussion on this thread was to answer the poster who seemed to think Microsoft could use account postcodes to identify who redeemed a code. I was simply pointing out how ludicrous that idea was.

Azari

daytona0 wrote: »

I would imagine that they would have the right, under SOGA, to not be held liable if the customer has scratched too hard... That is the point I'm making, and as a third party (much like a court!) an internet forum would be best served discussing all possible alternatives to determine, on the balance of probabilities, whether it was a SOGA issue or customer damage.

Except that that isn't the way SOGA works. The onus is on the merchant to prove that the product was fit for purpose and of merchantable quality, and that the customer did something unreasonable. The whole purpose of the SOGA was to stop retailers worming their way out of their obligations by telling customers 'it was your fault'. And if print that is designed to be rubbed smudges when it is rubbed, it is not fit for purpose. If it had been gouged, it might be a different matter, but OP says it was smudged, and so that makes it the seller's problem.

The point I made was regarding the items potentially being made in an identical manner, and the possible instance where only 1 card in a large batch being faulty.

You are right in what you say, though, and I won't argue beyond that except from asking why only 1 is seemingly faulty in a large batch. Suspect?

Where are you getting this "only one card in a large batch'? It just seems to have come from inside your own head. There is absolutely nothing in the OP's only post that says anything about it being the only faulty card in a large batch.

No we can't..... ASDA are a large UK retailer, and giving a replacement card isn't going to break their bank balance. Such a company can afford to give you something just to stop you from hassling them! Not to mention that they stand to make more from you in the long run when you continue to shop with them over the next 30 years, as opposed to you seeing your bum over a gift card and never going back again.

It is therefore impossible for us to tell whether it was a SOGA resolution or a goodwill gesture.

I think you are living in a little fantasy world all of your own. We are presented with a straight forward case of someone buying a faulty product, the merchant refusing to honour their SOGA obligations, Trading Standards being contacted, and the merchant coming to heel.

Then you start pulling things out of thin air because you seem to be desperate for this not to be the fairly simple case it seems to be.

In fairness I would imagine that Microsoft have something in place to deal with "faulty" or un-redeemable cards so yes maybe SOGA applies as normal to these, and ASDA should pursue it with Microsoft.

You seem to be extremely confused about the SOGA.

It does not in any way concern itself with how merchants and their supply chain deal with faulty goods. It's whole point was to stop that being an issue and the make the merchant directly responsible.

As for the batch, it is a convincing argument if only 1 unit is faulty in a large batch which were identically created. Whether it can be constituted as "evidence" is debateable though, but you have to agree that these are likely created identically and as such 1 complaint out of 100s is a bit suspect. Oh and just to be clear but 99% of people will complain if this type of item is faulty, so having only 1 complaint would be suspect.

You're off in your fantasy world, again. There is precisely NO evidence that it was just one faulty card in a batch.

I think that if ASDA were bothered enough then they'd pursue this further, but it isn't worth the effort really.

Dream on.

ASDA can pursue it until the cows come home but it won't alter the fact that the purchaser of a product could not use the product for the purpose for which it was sold.

Don't forget, though, that some people may be inclined to redeem the card before the "fault" develops. Whilst it is unlikely that OP has done this, it is always a possibility and the bottom line is that they would be stealing from another party (I use the word party so we don't lose ourselves in the "big, faceless corporation" mindset). That would be terribly unfair on the retailer, so you can understand their natural reluctance to assist the OP with this query.

Fantasy land, again.

As I said earlier in this thread, the fact that Microsoft have not taken elementary steps to enable them to verify whether or not a card has been redeemed is entirely their problem and that of their merchants.

Again: The whole point of the SOGA was to stop merchants evading their responsibilities by making the consumer suffer for the failings of products no matter from what point in the supply chain the failure stems.

Cornucopia

Couple of points...

1. The legislation is not constructed with the notion that "The onus is on the merchant to prove that the product was fit for purpose and of merchantable quality". It simply isn't written that way. There is a general requirement on retailers, but no notion of proof or evidence.

2. The legislation risks being out of date and out of touch with the realities of buying technology products. (Whether those are tangible products whose functions are complex and possibly driven by (in)compatibility with other technologies in the user's home; or whether they are virtual or proxy products such as in this thread).

3. As I said before, I agree that Asda could have handled this better, and should have negotiated with Microsoft on the OP's behalf (unless it was made clear at the time of purchase, or in the Ts & Cs of the product that this would not happen).

Realistically if the technology does not lend itself to signalling its own expiry, then this presents a problem to retailers, which they/Microsoft really ought to sort out. However if the problem only affects a tiny minority, it's possibly difficult to justify re-engineering it.

bod1467

1. Makes no difference - Azari is right. Within 6 months of purchase/delivery, the burden of proof (for any reported fault) lies with the merchant/seller. After 6 months the burden of proof switches to the purchaser.

Whether this will change in the revamp to SOGA (Consumer Rights Bill?) planned for later this year, I don't know. But the above is correct at the present time.

Azari

Cornucopia wrote: »

Couple of points...

1. The legislation is not constructed with the notion that "The onus is on the merchant to prove that the product was fit for purpose and of merchantable quality". It simply isn't written that way. There is a general requirement on retailers, but no notion of proof or evidence.

It doesn't need to be explicitly written that way, that's just the way it works. The buyer (initially) only has to show that that the product doesn't do what it's supposed to do.

The seller cannot simply say 'oh, that's your fault' (which was the case before the SOGA). They are obliged to defend the their sale of a defective product and thence there is a de-facto onus on them.

2. The legislation risks being out of date and out of touch with the realities of buying technology products. (Whether those are tangible products whose functions are complex and possibly driven by (in)compatibility with other technologies in the user's home; or whether they are virtual or proxy products such as in this thread).

To spin that the other way:

Technology companies risk problems if they do not understand their obligations under consumer protection legislation.

3. As I said before, I agree that Asda could have handled this better, and should have negotiated with Microsoft on the OP's behalf (unless it was made clear at the time of purchase, or in the Ts & Cs of the product that this would not happen).

Companies cannot wriggle out of their SOGA obligations by trying to dodge its requirements with T&C's. They are very limited in what they can do and would have to persuade a judge that any limitations were reasonable. (And that does not include saying that they allow a proportion of faulty products through because it's too expensive to check properly, and the customer just has to lump it - which is pretty much the gist of what all those in this thread who are siding with the retailer are saying.)

Realistically if the technology does not lend itself to signalling its own expiry, then this presents a problem to retailers, which they/Microsoft really ought to sort out. However if the problem only affects a tiny minority, it's possibly difficult to justify re-engineering it.

In which case they are just going to have to accept the loss in this 'tiny minority' of cases.

There is no SOGA defence: We couldn't be bothered to do what was necessary to verify the buyers claim, as it would have been expensive, so we are going to assume they are wrong/lying.

shaun_from_Africa

Cornucopia wrote: »

2. The legislation risks being out of date and out of touch with the realities of buying technology products. (Whether those are tangible products whose functions are complex and possibly driven by (in)compatibility with other technologies in the user's home; or whether they are virtual or proxy products such as in this thread).

You can hold the card in your hands therefore it is a tangible product.
The service provided by using the code written on the card will class as a virtual item, but the card most certainly won't.
It's like these types of cards:

A tangible card that provides a code that enables you to access a virtual product.
Try walking out a shop holding a handful of these without paying and when stopped by the security guard just say"it's not a tangible item so I'm not stealing anything" and see how far you get. The card won't have been activated if you haven't paid for it but this doesn't mean that it's not a "real" item belonging to the store.

Cornucopia

These types of products necessarily have the physical object, which by definition is the property of the store, to be sold to a customer.

The difficulty is that it's function (and therefore it's fitness for purpose and merchantable quality) are dependent on some virtual value that can be obtained at a later point, subject to the whims of a third party.

I buy gift cards from time to time, and I'm very conscious of their limitations compared to a bank card - they effectively need to be treated as cash, whilst their value is not physically evident (and could potentially be corrupted). I'm not particularly comfortable with that, but I accept it as that is the way they work, and I haven't experienced a problem... yet.

Cornucopia

Azari wrote: »

It doesn't need to be explicitly written that way, that's just the way it works. The buyer (initially) only has to show that that the product doesn't do what it's supposed to do.

Well, yes and no. The buyer has to satisfy the retailer that it falls within their obligations to resolve the issue. That may be easy (mouldy cheese), difficult (gadget that is incompatible with my internet router), or near-impossible (scratch-off top-up card that is not well designed).

The solution for Asda in this case is to possibly stop selling the item in question until Microsoft improve its usability.

The seller cannot simply say 'oh, that's your fault' (which was the case before the SOGA).

They very much can if that's how it appears on a reasonable interpretation of the facts.

SOGA is not all encompassing as people seem to be saying. There has to be a reasoned case for the retailer to be liable...