Burden of Proof

zoob

@zoob

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

If that's the case, you can prove you haven't used the set, all coverings on screen and around to should be still intact also the remote, batteries, screws and fittings will still be intact in there sealed packets, thus your able to prove the set couldent possibly been used.
Photograph all of this and the internel packaging that damaged, it would give you a lot stronger case.

Biffa14

Thanks guys...some nice debate going on there.

I did not damage the tv and I did not open it because it was a Christmas present. I understand from Which website that this icircumstance s covered in the CRA2015 too. If I gave it as a present to who ever and they opened it on Christmas Day to find it broken (by buying it online but sending it to the person I am giving it to) then CRA covers me for 30 days...as I have had no opportunity to inspect it and I would assume the receiving party would also not inspect because it was a present...

It's what the retailer believes is reasonable versus what the law considers reasonable.

The retailer is stating that the 7 day period is 'more than reasonable' whereas the CRA states that 30 days is reasonable.

The retailer is now intimating that I might have damaged them in the intervening period.

By the way, the retailer has soften its stance since I formally wrote to them stating that they are in breach of contract. They began by saying they would not 'entertain claims for damage in transit after 7 days' but since they received my letter, they now state they would entertain a claim if I could prove that the goods were damaged on arrival.

I have since put to them based on this thread, the fact that I have demonstrated that the goods are damaged, have claimed under CRA for the damage, provided the most effective remedy ie Replacement and pointed out that their terms may be considered unfair for excluding liability and for time limit on claim.

I wait with bated breath for their response.

PCMcGarry

I thought they maybe in breach, mutzi has muddied the waters a bit and hasn't really made his point clear. Let's see how the company read it and let us know.

neilmcl

zoob wrote: »

@zoob

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

If that's the case, you can prove you haven't used the set, all coverings on screen and around to should be still intact also the remote, batteries, screws and fittings will still be intact in there sealed packets, thus your able to prove the set couldent possibly been used.
Photograph all of this and the internel packaging that damaged, it would give you a lot stronger case.

Whilst they could prove that it wasn't used can they prove that they didn't cause the damage, ie, drop the box?

Biffa14

Hello everyone


They have responded by asserting their express term of notifying them of all claims within 7 days.


Having reviewed the consumer terms it clearly states that my statutory rights are not affected.


So my statutory short term right to reject faulty/damaged goods has not been affected by their terms but the retailer continues to hide behind the express term - logical fallacy?


They further state that their terms have been vetted by Trading Standards. So I am seeking clarification from TS (if and when they get back to me).

PCMcGarry

As a consumer you cannot contact trading standards direct. Have you contacted the citizens advice?

neilmcl

Biffa14 wrote: »

Hello everyone


They have responded by asserting their express term of notifying them of all claims within 7 days.


Having reviewed the consumer terms it clearly states that my statutory rights are not affected.


So my statutory short term right to reject faulty/damaged goods has not been affected by their terms but the retailer continues to hide behind the express term - logical fallacy?


They further state that their terms have been vetted by Trading Standards. So I am seeking clarification from TS (if and when they get back to me).

Time for an LBA then?

Biffa14

@PCMcGarry


Yes I contacted Trading Standards through Citizens Advice

PCMcGarry

neilmcl wrote: »

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.

Then why does the which site say this?

If a seller does try and pin blame on you for any damage, the onus is on the seller to prove this within the first six months of you receiving your goods.


http://www.which.co.uk/consumer-rights/action/how-to-complain-if-you-receive-damaged-goods-in-the-post

neilmcl

PCMcGarry wrote: »

Then why does the which site say this?

If a seller does try and pin blame on you for any damage, the onus is on the seller to prove this within the first six months of you receiving your goods.


http://www.which.co.uk/consumer-rights/action/how-to-complain-if-you-receive-damaged-goods-in-the-post

The website is correct, up to a point, what it doesn't mention is that this doesn't apply to the short-term right to reject where the onus is on the buyer.