damaged but not inspected and signed for

unholyangel

(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.

(3)Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.

Your delivery note amounts to a waiver and as you can see, you cannot lose your right even if you do sign a waiver.

Also see:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284426/oft311.pdf

Particularly: Group 2(a): Exclusion of liability for faulty or misdescribed goods

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.

And also: Group 2(d): Time limits on claims

unholyangel

As for your letter. Keep it short and simple. Don't include anything that isnt necessary. Your complaint/expectations will get lost in a sea of text and tbh, by the time they've read your last sentence, they'll probably already have forgotten the first.

On x date you received a delivery that was damaged upon delivery. You notified them within a reasonable time on x date at x time.

The Sale of Goods Act 1979 gives you a reasonable time to examine the goods to see whether they conform to contract. It also prohibits consumers from losing this right by agreement, waiver or otherwise.

Therefore a signature on delivery does not amount to acceptance of the goods. You are formally rejecting the goods in favour of a full refund.

If a satisfactory conclusion cannot be reached within 14 days, you will have no choice but to start legal proceedings at which point you will also be claiming for any reasonable additional expenses incurred as a result of their breach.

If you want to include any supporting documents/evidence then include them on another bit of paper but keep your main letter straight to the point. Title it letter before action and send (cant do this via email though so if via email, remove the legal proceedings/letter before action bits). If they still refuse then LBA via post.

marliepanda

You have already said your mothers memory isn't reliable and she's already worried she's signed for a dodgy package, so I'd leave out all the stuff about him blocking the door, jabbing his finger, being aggressive etc. you only have her word for it and to be honest it doesn't sound true, and sounds like her making an excuse for signing for a trashed package.

eskimo26

marliepanda wrote: »

You have already said your mothers memory isn't reliable and she's already worried she's signed for a dodgy package, so I'd leave out all the stuff about him blocking the door, jabbing his finger, being aggressive etc. you only have her word for it and to be honest it doesn't sound true, and sounds like her making an excuse for signing for a trashed package.

Yeah i was going to tone that down when I shorten it but the delivery company have asked some questions that are answered by that paragraph i.e. if the damage was so obvious why didn't she see it.

This driver knew exactly what he was doing and he's a scumbag, they need to be told about his behavior but i'll take out the emotive and descriptive parts.

wealdroam

eskimo26 wrote: »

Yeah i was going to tone that down when I shorten it but the delivery company have asked some questions that are answered by that paragraph i.e. if the damage was so obvious why didn't she see it.

This driver knew exactly what he was doing and he's a scumbag, they need to be told about his behavior but i'll take out the emotive and descriptive parts.

Yes, shorten your letter drastically... along the lines suggested by Unholyangel.

Something like:

Dear Sirs,
Order number: abc123.

On [date] you delivered [quantity] of [type] tiles.

The POD was signed to acknowledge that the delivery had taken place.

On closer inspection, as allowed for under Section 35 of The Sale of Goods Act, it was quite clear that few/a lot/most of the tiles are damaged. I enclose photographs showing the damage. These photographs also show that it is physically impossible for the damage to have occurred after the delivery had taken place.

Please arrange for these tiles to be collected as I am rejecting them as they do not conform to contract.

If you do not refund me by [date 14 days hence], then I will seek to recover my money through the courts.

Yours etc.

eskimo26

Hey all just an update,

I didn't think we were at the letter before action yet since we hadn't had a chance to discuss anything yet and they have already ordered replacement tiles, I confirmed we were rejecting the goods and answered some of their questions.

They have got back to us to say the delivery driver has denied everything [obviously] and they are know sending it off to their insurance, they also confirmed the replacements tiles will be arriving soon.

I want to email them and make it completely clear that whatever the outcome is with the insurance it makes no difference to their obligations towards the faulty goods we rejected and the cost is theirs alone.

Also to tell them as this is the case they do not need to update us on insurance claims or correspondences with the delivery aholes since this is exclusively a relationship between themselves and the companies in question and has nothing to do with us.

Is this ok?

Also these tiles, like most tiles are made to order, does this make a difference to anything.

hollydays

I may have missed this but what did they use to get the pallet of the truck.

eskimo26

hollydays wrote: »

I may have missed this but what did they use to get the pallet of the truck.

Unfortunately we don't know as we didn't see it but i'll ask my Mum if she saw anything.

Would be ok to write what i suggested above? How clear cut is this case? They seem to think the delivery signature means something, it's really frustrating that a company this established is trying to wrangle or pretend they don't know the details of the consumer laws. It makes me second guess myself.

bod1467

They are contracted to get the goods to you (your parents) in conformance with the contract. How they do this or who they use is their responsibility entirely.

So your proposed response (albeit tidied up and not using aholes ) is OK.

wealdroam

eskimo26 wrote: »

Also these tiles, like most tiles are made to order, does this make a difference to anything.

No.
Only if they were made to your specification could that be a possible issue.

But as they are damaged, i.e. do not conform to contract, even that would not be a problem.