Sent wrong model, but only noticed as after opened - rights

reggie

I ordered a pulse oximeter (yes I know!) - been having some breathing issues - so ordered one of these finger ones. Opened box and batteries ready to try and realised it had a different name on it, went to check box and it is a different make to the one I ordered. I rang company who said probably the same, just different label - but when I checked online at different suppliers they are totally different prices. Have I lost my return rights due to opening batteries? 

DoaM

What T&Cs were you sent for the contract?
When were these sent, and how? (Email is OK, a link in an email is not).

If the seller has sent the wrong thing then they are in breech of contract. Whether you have any contributory negligence depends on if the error was obvious prior to unpacking the goods. And whether this matters may depend on the answers to the above questions.

the_lunatic_is_in_my_head

reggie said:

 Have I lost my return rights due to opening batteries? 

I would say you haven't, were did you order from and how did you pay?  

reggie

Ordered from medical suppliers and paid by MasterCard. I have spoken to them and they seem ok about it, acknowledging that the brand I was sent was not the one that is on their website or on the order form. My error was not looking closely at the box, but never crossed my mind and only noticed when I went to read instructions.

unholyangel

DoaM said:

What T&Cs were you sent for the contract?
When were these sent, and how? (Email is OK, a link in an email is not).

If the seller has sent the wrong thing then they are in breech of contract. Whether you have any contributory negligence depends on if the error was obvious prior to unpacking the goods. And whether this matters may depend on the answers to the above questions.

There's no contributory negligence element in breach of contract - even when the breach is negligent.

It's simply a matter of the party in breach being liable for costs/losses arising from their breach. Even if you use goods for years and then discover the goods aren't as described, you're entitled to a remedy. With those remedies being replacement, refund (which can be partial to take account use you have had) or you can agree a reduction in price. Repair isn't an option in the circumstances here but might be in other cases. The rule is that the innocent party should not be worse off due to the breach (although neither should they be in a better position unless it's an unavoidable conseuqnece of restitution), there is no such rule for the party who breached the contract, quite the opposite. It is expected that they will be worse off and rightly so, as the breach was theirs. 

unholyangel

OP if you're within the first 30 days after delivery (assuming you purchased from a UK retailer at least - if not then anything I've said here or above may be irrelevant) then you have the right to refund, but you can also choose to accept a replacement or negotiate a price reduction. 

If more than 30 days have passed then the retailer has 1 attempt to replace (to bring the goods within conformity of the contract) and if that fails or cannot be done within reasonable time, you again have the right to refund or to negotiate a price reduction. 

JJ_Egan

A lot of those Oximeters are just single source rebranded .

[Deleted User]

reggie said: I rang company who said probably the same, just different label - but when I checked online at different suppliers they are totally different prices. Have I lost my return rights due to opening batteries? 

If you can show the item is being sold for considerably less elsewhere, it may be worth arguing that they've  sent you an item of lesser value and request that they refund the difference. As it's very likely that this  item is in fact the same and just re-branded, this might be a better option than simply returning for a refund?

reggie

I've been told to return; I asked about refunding price difference, but weren't able to do that. Hopefully, all is now resolved. Thanks for your help.