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

daytona0

Azari wrote: »

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.

You have completely ignored my point, and stated something which not only am in agreement about but also something you've said before. Remember that you asked:

"Maybe you could tell us what 'rights' the SOGA confers upon the retailer"

I replied:

"I would imagine that they would have the right, under SOGA, to not be held liable if the customer has scratched too hard..."

To which you replied:

"Except that that isn't the way SOGA works"

ALSO, on a later post to someone else you used the line:

"It doesn't need to be explicitly written that way, that's just the way it works."


So I'm really not sure why you arguing with me here! All I'm saying is that the retailer cannot be held liable if the consumer causes the damage. That is a "right" of SOGA which applies to the retailer, and (to use your own words) "It doesn't need to be explicitly written that way, that's just the way it works.". If you don't agree with that then by all means enlighten me! I don't know everything and would welcome feedback.

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.

I'll explain it one more time because I don't think you're getting it (also, every part of my human language comes from inside my head so it is hardly an insult!).

- Cards will come in large batches which may have been identically made with the same equipment and materials, not to mention standards testing. Whilst not impossible, it is rare for 1 unit in a batch to be faulty but it would be more common for a whole batch to be faulty.

- Cards serve one purpose, to be redeemed.

- 99% of customers who receive a faulty card will go back to complain

- The number of complaints will be a good indicator of whether faulty, or whether customer damage.

That is just common sense logic. If you read my post I actually questioned whether this would or would not constitute as evidence or not. If not then I am not going to disagree with anything you say because it is otherwise fine.

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.

Yes, you are probably right. But that isn't the only reason why a company may pay out instead of contesting a SOGA dispute for a "faulty" scratch card. I explored one, but this apparently puts me in a little fantasy world when in fairness you are the one more likely to be there if you can't appreciate alternative reasons.

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.

I like the choice of words "seems to be".

I seem to be desperate, as opposed to BEING desperate?

Seems to be fairly simple? As apposed to BEING simple?

That is why I have offered alternatives, because whilst it SEEMS TO BE one thing it could be something else too. Not too such why you are going hammer and tongs at me if we are in some sort of agreement lol.

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.

I didn't explicitly say that SOGA applies between ASDA and microsoft. I said that if ASDA pay out on SOGA (to customer) then ASDA can try and claim the money back from microsoft via their supply chain, so if the fault was inherent then ASDA may not be unfairly penalised. Even if it isn't possible, it makes the item more tangible in my eyes which allows me to agree with most of your posts.

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

There is no evidence for anything, because we are a third party who do not have access to this. So I am speculating, offering a different possibility. You can disagree, but don't start trying to insult me. It serves no purpose.

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.

errm, I believe that ASDA would pursue it with the intention of trying to prove it was damage caused by the consumer. If the cows come home around the same time that they potentially prove this, then not only will it alter the fact but it may also enable them to have a nice cup of tea too...

It just depends how legitimate ASDA's side was, and/or how bothered they could be. One scenario is that ASDA COULD fight a SOGA claim (we don't have all the facts at hand so don't jump on that possibility) but they COULDN'T BE BOTHERED to do so. This results in a goodwill gesture which looks like a SOGA resolution to the untrained eye.


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.[/QUOTE]

Just to be clear but "natural reluctance" does not mean NO under either SOGA or goodwill.

Aside from that, I was talking about people who may commit fraud by purchasing codes, redeeming them and then causing damage which makes the code unreadable. It is Microsoft's problem, but it is also unfair to defraud money from ASDA by doing this.

Frankly, the only person living in this magical fantasy land (in respect to the fraud bit) is you.

bod1467

All I'm saying is that the retailer cannot be held liable if the consumer causes the damage.

Correct. But see below:

That is a "right" of SOGA which applies to the retailer,

With rights come responsibilities. In this case (within 6 months of purchase) the responsibility lies with the retailer to prove the customer caused the damage. (Just saying it, or that they've had no other complaints, is not proof).

ThumbRemote

daytona0 wrote: »

All I'm saying is that the retailer cannot be held liable if the consumer causes the damage. That is a "right" of SOGA which applies to the retailer, and (to use your own words) "It doesn't need to be explicitly written that way, that's just the way it works.". If you don't agree with that then by all means enlighten me! I don't know everything and would welcome feedback.

Actually, Asda certainly can be held liable in the above scenario. The default is that Asda are held liable, unless they can prove that misuse has occurred. (Note that your phrase "the customer causes the damage" is overly broad; the customer can cause damage because of an inherent fault).

In this case Asda did not prove misuse, they simply refused to refund (initially). After 6 months for a customer to prove misuse they need an independent report, the onus on a retailer is to prove misuse to the same standard. So the OP was quite correct, Asda did not follow the SoGA.

daytona0

ThumbRemote wrote: »

Actually, Asda certainly can be held liable in the above scenario. The default is that Asda are held liable, unless they can prove that misuse has occurred. (Note that your phrase "the customer causes the damage" is overly broad; the customer can cause damage because of an inherent fault).

In this case Asda did not prove misuse, they simply refused to refund (initially). After 6 months for a customer to prove misuse they need an independent report, the onus on a retailer is to prove misuse to the same standard. So the OP was quite correct, Asda did not follow the SoGA.

The first paragraph is a bit silly because I have previously made that differentiation, and if I haven't then you can probably read between the lines and assume it is not literal in broadness.

My point is simply that ASDA chose NOT to fight it! Just the opposite of what you are saying really. ASDA have to prove inherent fault yes, but maybe given the opportunity they could actually prove it! Who knows.... That is why I don't like getting lost in the notion that OP has gained a SOGA resolution, because they might not have been entitled to one in the first place! If customer is not entitled but they still get paid out then it is a goodwill gesture, plain and simple.

Azari

Cornucopia wrote: »

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).

How easy it is to 'satisfy' a retailer depends on the attitude of the retailer.

The last case in your example above is clearly ridiculous.

The consumer bought an item the sole purpose of which was to provide a number.

The number is evidently unreadable. Therefore the item was not fit for purpose.

The retailer is liable unless it can prove that the customer mistreated the card to an unreasonable degree. (e.g. [for smudging] revealed the printed number whilst having hands covered in an unusual solvent.)

Azari wrote: »

... 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...

This should be obvious to anyone with the slightest intelligence.

You are effectively prosecuting a straw man argument by falsely assuming a statement means something that only an idoit would think it meant.

The key word in what I wrote was 'simply'. Before SOGA, retailers would frequently 'simply' respond to faulty goods with a bland: "you must have misused it". Now, they cannot 'simply' do that, they actually need to provide a sound and compelling reason for that assertion.

Obviously there has to be a reasonable case - you cannot buy a vase, smash it with a hammer and claim a refund. (Unless it was claimed to be hammerproof!) But most people have the sense to realise the basic limitations of the SOGA without needing to have them spelled out every time.

Cornucopia

I suppose what I'm objecting to is the notion that the retailer is going to prove or disprove anything.

An expert in the clothing department might be able to give an opinion as to whether a damaged item has been misused, but the idea that Asda staff could begin to definitively assess a smudged top-up card is nonsense.

The correct, common sense approach is for Asda to liaise with Microsoft to determine whether the card has been used. That's the only satisfactory conclusion, given the facts as they are.

Azari

daytona0 wrote: »

Wall of text snipped as it just goes over the same old, same old.

Frankly, the only person living in this magical fantasy land (in respect to the fraud bit) is you.

The 'fantasy' quote of mine referred to you adding things to the OP's account that had never been stated and then treating them as if they were facts in the case under discussion. (e.g. Only faulty card in a large batch.)

As to your continued assertion that SOGA will not apply in certain cases because it would not be 'fair' or because it might enable fraud, I'm afraid that you STILL have not grasped the fundamental purpose of the SOGA.

Before SOGA, retailers could use innumerable excuses to shirk (what are now) their responsibilities. "How do I know that you haven't <whatever>" would be probably considered the end of the matter.

Now, however, the onus for proving that it is not responsible for a defect rests with the merchant.

Thus, the fact that there is no data available to show that some claim is fraudulent also rests with the merchant. If the merchant and it's supply chain choose not to implement fraud protection measures, that is entirely their choice and any disadvantage brought about bey tghat choice cannot be deferred to the customer.

Azari

Cornucopia wrote: »

I suppose what I'm objecting to is the notion that the retailer is going to prove or disprove anything.

I agree, but I think in the real world all that is necessary is for the retailer to demonstrate to the customer that s/he can see evidence that the problem was caused by misuse.

An expert in the clothing department might be able to give an opinion as to whether a damaged item has been misused, but the idea that Asda staff could begin to definitively assess a smudged top-up card is nonsense.

Agreed, and that is why for any of these cards, phone, gift, game, whatever, there needs to be a cast iron security system in place.

If a merchant and its supply chain cannot be bothered to set up such a system then they cannot expect the customer to suffer a loss when there is a problem.

The correct, common sense approach is for Asda to liaise with Microsoft to determine whether the card has been used. That's the only satisfactory conclusion, given the facts as they are.

Exactly.

And if they cannot show (in this case) that the card was activated later than the time of purchase then they must refund the customer.

Whether they cannot show that because the 'computer says no' or because there is no system in place to allow this, is immaterial as far as consumer law is concerned.

Hermione_Granger

Azari wrote: »

You are effectively prosecuting a straw man argument by falsely assuming a statement means something that only an idoit would think it meant.

Would that be like an idiot that can't actually spell idiot?

Azari

Hermione_Granger wrote: »

Would that be like an idiot that can't actually spell idiot?

LOL, I love it when someone makes a mistakes like that - even if it's me.

I'm not even going to correct it. :rotfl: