Faulty carpet - Fitting costs

kingborris

Thanks everyone. Sounds like they have an obligation to cover the fitting . Now I just have to persuade them is in their best interest to pay up!

martinsurrey

kingborris wrote: »

Thanks everyone. Sounds like they have an obligation to cover the fitting . Now I just have to persuade them is in their best interest to pay up!

I would take a lot of this advice with a pinch of salt.

losses can only be recovered if they could not be mitigated.

"There are legal tests to be satisfied for a consumer to recover damages: a person can only recover damages for loss which was caused by the breach (of the term required by the Act) and which was sufficiently foreseeable; and the consumer cannot recover for loss which they could reasonably have acted to limit or mitigate."

fitting is foreseeable, so is recoverable, BUT as the fault was present from delivery, an inspection of the goods would have allowed you to mitigate the installation cost by either getting it replaced prior to fitting or delaying the fitter.

Its not as clear cut as others are making it seem.

*edit for more*
I have had a look at the terms and conditions on a few carpet suppliers and they all ask/recommend that:

"Please check that the goods you receive are the ones you ordered, the correct colour and size, and that they are examined for apparent faults or damage at the time of delivery and before installation/assembly. If on inspection you have any doubts please contact us immediately. "

they could reasonably argue that by not checking them prior to fitting you did not mitigate your losses, so they are unrecoverable.

DoaM

Are they saying you need to unroll the full carpet to inspect for faults before it is fitted? Seriously?

Nobody is going to do that until the time of fitting, at which point the cost of the fitter has already been borne. (I agree that the carpet could have been inspected prior to actual fitting, so the cost of removing [un-fitting, as it were] could be deemed unrecoverable. But the cost to fit the replacement is still recoverable).

martinsurrey

DoaM wrote: »

Are they saying you need to unroll the full carpet to inspect for faults before it is fitted? Seriously?

Nobody is going to do that until the time of fitting, at which point the cost of the fitter has already been borne. (I agree that the carpet could have been inspected prior to actual fitting, so the cost of removing [un-fitting, as it were] could be deemed unrecoverable. But the cost to fit the replacement is still recoverable).

yes they are, its not that hard, you unroll a few feet at a time and reroll as you go, I do it on every carpet I buy.

If you bother or not is not the point, you should, as advised in the terms and condition's of the contract (and I don't think you could argue its an unfair term).

its the same as a delivery date

"Estimated delivery and/or installation dates are given in good faith but are not guaranteed times and should not be relied upon as such If the expected delivery time is likely to, or does, exceed 30 days you will be able to cancel your order if you wish and receive a full refund."

not many people wait until they have the carpet in their house before booking a fitter, but that doesn't make the supplier liable for the re booking cost if they deliver late.

Mr_Poves

At last someone who actually know's how carpet suppliers operate .

unholyangel

martinsurrey wrote: »

I would take a lot of this advice with a pinch of salt.

losses can only be recovered if they could not be mitigated.

"There are legal tests to be satisfied for a consumer to recover damages: a person can only recover damages for loss which was caused by the breach (of the term required by the Act) and which was sufficiently foreseeable; and the consumer cannot recover for loss which they could reasonably have acted to limit or mitigate."

fitting is foreseeable, so is recoverable, BUT as the fault was present from delivery, an inspection of the goods would have allowed you to mitigate the installation cost by either getting it replaced prior to fitting or delaying the fitter.

Its not as clear cut as others are making it seem.

*edit for more*
I have had a look at the terms and conditions on a few carpet suppliers and they all ask/recommend that:

"Please check that the goods you receive are the ones you ordered, the correct colour and size, and that they are examined for apparent faults or damage at the time of delivery and before installation/assembly. If on inspection you have any doubts please contact us immediately. "

they could reasonably argue that by not checking them prior to fitting you did not mitigate your losses, so they are unrecoverable.

The above is incorrect. Even if you fail to mitigate you can recover your losses however they will be awarded as if you had taken reasonable steps to mitigate.

And that last bit is the key - you're not expected to do everything humanly possible, only take reasonable steps. The purpose of damages is to put you in as near a position financially as possible to if the contract had been completed correctly.

martinsurrey wrote: »

not many people wait until they have the carpet in their house before booking a fitter, but that doesn't make the supplier liable for the re booking cost if they deliver late.

If you specifically book for delivery on a certain day then yes it does because they would be in breach of contract, its a loss you wouldnt have incurred had the contract been performed correctly and they cannot escape liability for losses simply because you did not foresee that they would breach the contract - that would be inane and totally at odds with a contract being a legally binding agreement.

martinsurrey

unholyangel wrote: »

The above is incorrect. Even if you fail to mitigate you can recover your losses however they will be awarded as if you had taken reasonable steps to mitigate.

And that last bit is the key - you're not expected to do everything humanly possible, only take reasonable steps. The purpose of damages is to put you in as near a position financially as possible to if the contract had been completed correctly.



If you specifically book for delivery on a certain day then yes it does because they would be in breach of contract, its a loss you wouldnt have incurred had the contract been performed correctly and they cannot escape liability for losses simply because you did not foresee that they would breach the contract - that would be inane and totally at odds with a contract being a legally binding agreement.

so you fail to mitigate, you can claim for fitting, and they award nothing as you could have mitigated with a simple pre installation check, as advised in the T&C's, we get to the same point.

the terms and conditions form part of the contract, and clearly state its not guaranteed delivery, advisory only (in most cases), so again, not a breach of contract, a failure on the part of the consumer to correctly understand the contract.

unholyangel

martinsurrey wrote: »

so you fail to mitigate, you can claim for fitting, and they award nothing as you could have mitigated with a simple pre installation check, as advised in the T&C's, we get to the same point.

the terms and conditions form part of the contract, and clearly state its not guaranteed delivery, advisory only (in most cases), so again, not a breach of contract, a failure on the part of the consumer to correctly understand the contract.

And as stated earlier by shaun, while you can have those types of terms in a b2b contract, you cannot have them in a consumer contract - they amount to unfair terms and are legally unenforceable.

Why? Because such a term allows them to be negligent/in breach of contract with impunity.

Part 1 of Schedule 2 states that the following may be unfair:
(17) A term which has the object or effect of limiting the trader’s
obligation to respect commitments undertaken by the trader’s
agents …

And also:

5.9.1 The law requires that goods should be delivered, and services carried out
on time. Where the business has set a time in stating its terms to the
consumer, it is bound to meet that deadline – where no date was set, any
goods ordered generally have to be delivered within the standard 30-day
period generally applicable for delivery of goods (see the table of statutory
rights in part 4 above), and services must be performed within a reasonable
time. A term which allows the trader to fail to meet this fundamental
requirement of timeliness is liable to be considered unfair. Because of its
likely impact on the consumer’s ability to rely on statutory rights and
remedies – see part 4 of the guidance – it may well be blacklisted in any
event.

5.9.2 This applies not just to terms which simply exclude all liability for delay, but
also to standard terms allowing unduly long periods for delivery or completion
of work, or excessive margins of delay after an agreed date. The effect
is the same – to allow the business to ignore the convenience of
customers, and even its own oral promises as to deadlines.

5.6.1 If a contract is to be fully and equally binding on both trader and consumer,
each party should be entitled to full compensation where the other fails to
honour its obligations. Clauses which limit the trader’s liability are open to
the same objections as those which exclude it altogether. See paragraphs
5.2.1 to 5.2.10 regarding disclaimers generally.

It has the effect of making the contract binding on the consumer but not the retailer - which upsets the legal balance as a contract needs to be equally binding on both parties.

martinsurrey

unholyangel wrote: »

And as stated earlier by shaun, while you can have those types of terms in a b2b contract, you cannot have them in a consumer contract - they amount to unfair terms and are legally unenforceable.

Why? Because such a term allows them to be negligent/in breach of contract with impunity.

And also:

It has the effect of making the contract binding on the consumer but not the retailer - which upsets the legal balance as a contract needs to be equally binding on both parties.

I see no part of the example T&C's I quoted that give them the power you claim.

the checking before install T&C does not absolve them of meeting the contract, ie supplying a carpet of sufficient quality. It a common sense T&C that you would look at a component before you spend cash installing it.

and the delivery T&C MIRRORS the Consumer Rights Act section 28, in that they will deliver within 30 days or the consumer may cancel.


"Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—
(a)without undue delay, and
(b)in any event, not more than 30 days after the day on which the contract is entered into.
(4)In this section—
(a)an “agreed” time or period means a time or period agreed by the trader and the consumer for delivery of the goods;
(b)if there is an obligation to deliver the goods at the time the contract is entered into, that time counts as the “agreed” time.
(5)Subsections (6) and (7) apply if the trader does not deliver the goods in accordance with subsection (3) or at the agreed time or within the agreed period.
(6)If the circumstances are that—
(a)the trader has refused to deliver the goods,
(b)delivery of the goods at the agreed time or within the agreed period is essential taking into account all the relevant circumstances at the time the contract was entered into, or
(c)the consumer told the trader before the contract was entered into that delivery in accordance with subsection (3), or at the agreed time or within the agreed period, was essential,then the consumer may treat the contract as at an end."

Edit

Consumer RIGHTS act, not Consumer credit Act, doing too much at once..

unholyangel

martinsurrey wrote: »

I see no part of the example T&C's I quoted that give them the power you claim.

the checking before install T&C does not absolve them of meeting the contract, ie supplying a carpet of sufficient quality. It a common sense T&C that you would look at a component before you spend cash installing it.

and the delivery T&C MIRRORS the Consumer Rights Act section 28, in that they will deliver within 30 days or the consumer may cancel.


"Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—
(a)without undue delay, and
(b)in any event, not more than 30 days after the day on which the contract is entered into.
(4)In this section—
(a)an “agreed” time or period means a time or period agreed by the trader and the consumer for delivery of the goods;
(b)if there is an obligation to deliver the goods at the time the contract is entered into, that time counts as the “agreed” time.
(5)Subsections (6) and (7) apply if the trader does not deliver the goods in accordance with subsection (3) or at the agreed time or within the agreed period.
(6)If the circumstances are that—
(a)the trader has refused to deliver the goods,
(b)delivery of the goods at the agreed time or within the agreed period is essential taking into account all the relevant circumstances at the time the contract was entered into, or
(c)the consumer told the trader before the contract was entered into that delivery in accordance with subsection (3), or at the agreed time or within the agreed period, was essential,then the consumer may treat the contract as at an end."

Edit

Consumer RIGHTS act, not Consumer credit Act, doing too much at once..

You were talking about arranging delivery for a certain date (or at least I was to which you replied about T&C's saying delivery is only advisory). You cannot agree a date then rely on T&C's to override the contractual commitments you agreed to undertake.

As for inspecting before booking installation.... Again, you are not expected to do everything humanly possible. Nor does mitigation kick in until there has been a breach - so you cannot use the argument that OP failing to anticipate a breach of contract is failure to mitigate. Mitigation is steps taken after a breach - not in preparation for a breach which may or may not happen.

Even under the old SOGA, (as a consumer) where goods were delivered and you had not previously examined them, you were not deemed to have accepted them until you had a reasonable opportunity to examine them to assess whether they conform to contract. However if you were not a consumer, you could lose the right to reject by treating the goods in a way that was inconsistent with the retailer retaining ownership (ie treating the goods as your own - by cutting & fitting it for example).

But under CRA acceptance is no longer a "thing".

ETA: Almost forgot, you missed this part in the section you quoted:

(13)This section does not prevent the consumer seeking other remedies where it is open to the consumer to do so.