Burden of Proof

neilmcl

The 6 month burden of proof does not apply to the short term right to reject. If exercising this right within 30 days the onus is on te buyer to prove the item does not conform to contract.

Fosterdog

How was the TV packaged? You said there was no external damage to the box. In my experience with TVs and monitors they are usually packaged with polystyrene supporting the frame of the TV and the area in front of the screen is open space, they are packed this way to ensure nothing can physically touch the screen to break it during transit unless the damage is so severe it damaged the packaging too.

I can see why the retailer would be dubious when they deal with transit damage day in day out and would know how these things happen.

Where on the screen is the damage? What size screen is it and how much of the screen is damaged?

Biffa14

@zoob

Yes, on removing the TV from its box it was very evident that the screen was smashed.

matttye

JayCartwright wrote: »

If it went to court it would be civil so the the burden of prove would be on the balance of probability.

51% or in the works of Judge Rinder, so they are more sure than not.

You're referring to the standard of proof.

The burden of proof confirms the party on whose shoulders it rests to prove the case.
The standard of proof confirms to what standard the evidence has to prove the case.

The burden of proof is on the prosecution in criminal proceedings and the claimant in civil proceedings.

The standard of proof is beyond reasonable doubt in criminal proceedings and on the balance of probabilities in civil proceedings.

System

PCMcGarry wrote: »

I know the two cases are extreme.

The old Sale of Goods Act used to say you have a reasonable time to inspect the goods. It didn't state what is reasonable.

The new act gives the seller 30 days.

To refer back to the OPs original question, it's the balance of probabilities and the burden is on him. The 30 day limit on the short term right to reject has nothing at all to do with burden of proof. He can reject the goods for up to 30 days, he just might need to prove his case, rather than be assumed to be in the right.

If he'd called the retailer 10 minutes after delivery, the odds are it arrived damaged. The more time passes, the more chance there is the buyer damaged it. I'm not saying he did damage it but the retailer probably doesn't know who the customer actually is beyond the name on the receipt and also has no idea what's been done to the TV in the time since delivery. It's not unreasonable to ask for proof it arrived damaged.

Why is a (random) customers word not good enough? This forum would fill any seller with confidence in the integrity of the general public.

https://forums.moneysavingexpert.com/discussion/5387367
https://forums.moneysavingexpert.com/discussion/5386545

And that's just page one I've observed that morals are relative to how big or far away the company, especially if you never have to deal with a human being. Why this might seem like cynicism, it's the world we live in. There are bad buyers and bad sellers.

The same exclusions I quoted above applied previously, they are not new. The explanatory notes might help: http://www.legislation.gov.uk/ukpga/2015/15/notes/division/3/1/3/4

97.Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault. This applies where the consumer exercises their right to a repair or replacement or their right to a price reduction or the final right to reject. This does not apply where the consumer exercises the short-term right to reject. These subsections correspond to section 48A(3) and (4) of the SGA and section 11M(3) and (4) of the SGSA.

For an example interpretation of this exclusion based on incompatibility (from the SoGA days) see Commercial Law By Eric Baskind, Greg Osborne, Lee Roach (page 447)

...the lack of confomity is inconsistent with the aplication of the six-month presumption, because it is more likely that the thing complained about was caused by the consumer. The would occur if, for example, the consumer complained about a dent in the goods after, say, five months of ownership.

Biffa14 wrote: »

@zoob

Yes, on removing the TV from its box it was very evident that the screen was smashed.

Was anyone else there? i.e witnesses.

PCMcGarry

Ok one final question from me.

Seller has a cut off point of 7 days for transit damage. Is it reasonable to assume that if opened on day 8 the buyer damaged it when if he'd opened it the day before it arrived in that condition?

System

I think you're missing my point.

If the six-month presumption applies the buyer must do nothing further to prove his case. All his rights are available to him unless the seller can prove otherwise.

If it doesn't apply, the buyer must be able to prove his case on the balance of probabilities. It is not assumed to be the buyer's fault, but it's also not assumed to be the seller's. Who damaged the TV? Nobody knows.

Whether seven days is a reasonable cut-off is debatable too, it depend what exactly what that term says. It could be challenged as unfair, but I can't see how any additional rights would be gained by doing so. What it does do it make it easy for the people who complain during that first week.

PCMcGarry

mutzi wrote: »

I think you're missing my point.

If the six-month presumption applies the buyer must do nothing further to prove his case. All his rights are available to him unless the seller can prove otherwise.

If it doesn't apply, the buyer must be able to prove his case on the balance of probabilities. It is not assumed to be the buyer's fault, but it's also not assumed to be the seller's. Who damaged the TV? Nobody knows.

Whether seven days is a reasonable cut-off is debatable too, it depend what exactly what that term says. It could be challenged as unfair, but I can't see how any additional rights would be gained by doing so. What it does do it make it easy for the people who complain during that first week.

So are you saying he has the right to a replacement tv?

System

:rotfl: Yes, absolutely, if he can show (more likely than not) that it arrived broken!

bris

The six month rule is great when there is no sign of damage, ie a motherboard fails, how did it happen? The retailer can have it inspected to check for water damage etc, if none visible a replacement is given.


In this case the damage is obvious, as far as they are concerned you dropped it, to them they have proved accidental damage so not covered, claim rejected.


Now the question is no longer about the six month rule but now passes to the time scale to inspect the goods. Would it be reasonable to assume the goods should have been inspected well within a month. For me yes, it looks to the outside world that this is user damage but it's a reasonable person in court that needs convinced not us.


In this case the 30 day rejection rule is also misleading as it has nothing to do with inspection but to do with whether the goods fail within the first 30 days as to who gets to decide the resolution.