Mattress exchange/refund rights 17 October 2022 at 12:00PM in Consumer rights 59 replies 1.8K views

Manxman_in_exile

the_lunatic_is_in_my_head said:

... What the company have done is mirrored consumer rights and then when it's convenient for them said well actually it was goodwill.

The CRA doesn't say anything about the trader inspecting the goods or having to confirm a fault,etc, it says that the goods are taken to not conform unless otherwise demonstrated, in this instance it wasn't otherwise demonstrated and therefore was taken. In my view mattress 2 is done and dusted and belongs to the company...

It seems to me - from the OP's own words - that the OP complained from the outset that mattress 2 was not of a uniform shape thus allowing the bedframe to be visible.  The seller accepted the OP's word about that without any fuss and arranged a replacement.  The OP rejected the replacement (mattress 3) for having the same non-uniform shape as mattress 2.

The seller has now had an opportunity to look at the rejected mattress 3.  Whether they actually have looked at it or not, I don't know, but it would seem they've now decided that they'd like to inspect mattress 2 before they either supply a second replacement (mattress 4) or give the OP a refund.

It seems to me perfectly reasonable that the seller should be able to inspect mattress 2 and that they shouldn't now be penalised for accepting the OP's complaint at face value that it was faulty without inspecting it.  I'm sure they could have caused greater inconvenience to the OP concerning that than they actually have if they'd insisted on inspecting it whan the original complaint was made.  I suspect that telling them they can't now inspect it will not be something that helps future customers...

Bearing in mind (1) the OP has clearly stated that they have no issue about having the mattress inspected, apart from the fact he or she will have to take more time off work, and (2) the OP has paid the seller £1500 for a mattress the OP can't use, if I were the OP I'd be doing everything I could to get this resolved.

I'd agree to the inspection but I'd tell the seller that if they agreed it was faulty that they'd be paying for my extra time off work.

I can't see any other way forward that wouldn't result in the OP taking even more time off work - which is what seems to concern them most.

(And I'd still like to see photos of the fault.  Like @HampshireH I can't get my head round a mattress that isn't of uniform shape)

the_lunatic_is_in_my_head

Ath_Wat said:

the_lunatic_is_in_my_head said:

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

The retailer only has one chance to repair or replace then the consumer can exercise their final right to reject...

But only if the goods are actually faulty in the first place, surely?

I understand your argument that if the retailer has replaced the mattress without examining it, then they could be taken to have accepted that it is faulty.  I understand the argument, but I don't agree with it.  

I think that for the seller to be given only one chance to repair or replace a faulty item, it's entirely reasonable for them to want to inspect it - especially here where the OP is rejecting the third mattress in a row, and the last two mattresses have both had the same unusual(?) fault.

I'd like to see the OP's photos and measurements so I can better understand what they're complaining about.

If the third mattress (which has been returned to the seller) has the same fault as the second mattress, has the OP suggested to the seller that they inspect the third mattress?

the_lunatic_is_in_my_head said:

...If a retailer could turn around and say well it wasn’t a remedy but goodwill this interferes with the final right to reject which is infringing on the consumer’s rights...

But if it wasn't a remedy and was goodwill, that would be giving the OP rights they aren't entitled to, wouldn't it?

I've got no problem with consumer protection giving consumers an advantage over retailers as a general rule, but this doesn't feel quite right to me.

I'd like to see the photos.

If a physical shop accepts change of mind returns it's obvious that this is goodwill as it goes beyond consumer rights.

What the company have done is mirrored consumer rights and then when it's convenient for them said well actually it was goodwill.

The CRA doesn't say anything about the trader inspecting the goods or having to confirm a fault,etc, it says that the goods are taken to not conform unless otherwise demonstrated, in this instance it wasn't otherwise demonstrated and therefore was taken. In my view mattress 2 is done and dusted and belongs to the company.

If the company was acting under goodwill they should have said so, of course if they did and OP hasn't said then all this is pointless  

Ath_Wat said:

the_lunatic_is_in_my_head said:

The retailer only has one chance to repair or replace then the consumer can exercise their final right to reject.

If a retailer could turn around and say well it wasn’t a remedy but goodwill this interferes with the final right to reject which is infringing on the consumer’s rights.

It’s convenient for them to say it was goodwill now but unless they said it before I think it should be taken as the consumer complained the goods did not conform and a remedy was provided. 

They took the customer's word for it that it was faulty.  They sent another.  The customer said that was also faulty with the same fault, that nobody else has complained about,  and returned it.  When they looked at that one they don't think it was faulty.  Now they want to look at the first one.

I am not sure why you have a problem with the idea that a court would find this series of events wholly plausible, as do I.

The defence against your claim that it is "infringing on the consumer’s rights" is that it doesn't, because the customer has no rights to reject it as faulty, as there is nothing wrong with it.

Now had they sent it back for a refund as a distance sale because they didn't like it, that would be a completely different matter.  But they claim it is faulty because it's not a perfect shape.

RE the part in bold, you may say it's a logical conclusion that no one else has complained but it's equally logical others have and that's why they agreed without question, perhaps a faulty batch or perhaps a brand or specific product that known for random faults. You can't say with certainty that no one else has complained in the same way I can't say others have, both are equally plausible in the circumstances.

The OP also hasn't said the company have looked at 3 and told them there's not a problem with it. 

It's a long thread so if I'm incorrect on that 2nd point by missing something that was said by OP about the companies response when 3 got back to them then my apologies, if it's your own narrative it goes in the fiction section   

What the company should do is inspect mattress 3 when it's returned to them, if they disagree with the claim of it being faulty they should return it to OP (and pick up mattress 2).

You could say 2 & 3 are the same so what's the point and just leave OP with 2 but then who knows if they are actually the same, maybe both are as they are meant to be with regards to the problem OP thinks is present but unknown to anyone 2 will fail before 3 due to a completely different fault hiding away. If OP has 3 back and wishes to disagree they can have it inspected themselves, if they are left with 2 they can't have the mattress that should belong to them and be disputed inspected. By this point the whole thing is ridiculously convoluted.

It should also be remembered that any remedy of repair/replace should be done without significant inconvenience, OP has stated why they don't want an inspection, it would mean 2 days off work (one for the inspection and a second for the collection) and they have no more time off work, that's why the company should have collected it and inspected it before sending 3 and at this point we loop back to "what the company should do is inspect mattress 3 when it's returned to them, if they disagree with the claim of it being faulty they should return it to OP (and pick up mattress 2)."

Which is a huge lot of words that once again fails to address that  you, like the OP, are assuming it is faulty when the company's behaviour seems to make it quite clear they don't accept that. As the OP refuses to tell us the exact nature of the "fault", I will draw my own conclusions.
If they know there is a problem with a faulty batch or specific product why send one out and then get suspicious about the second, when they could have expected a similar problem?  I've made that point about 3 times and you won't address it.

And why are you talking about "failing"?  The OP says it's an irregular shape.  Nobody has suggested anything has failed or will fail.

I’m not assuming it’s faulty, I’m saying the legislation says it was taken to be faulty and the company has missed their chance to demonstrate otherwise. 

The point you say I haven’t addressed is academic in my view due to the paragraph above.

Reference to failing was pointing out any mattress could have other problems unknown and may fail in the future, for that reason should the company feel 3 isn’t faulty now it should be 3 that gets returned to the OP, I thought that was explained clearly but going forward we’ll stick to “not conforming to the contract”  

Manxman_in_exile

OK.  If you are suggesting that the correct course of action for the company - if they are of the opinion that there is nothing wrong with mattress 3 and they are not now sure about mattress 2 - is to redeliver mattress 3 to the OP, then that seems fair enough.

But I'm not certain that that wouldn't leave the OP in a worse position if they are worried about taking more time off work. Wouldn't they then have to take more time off for the redelivery of mattress 3 and, presuming that they are correct in stating that mattress 3 is faulty, aren't they in the same position as they are now, except they've taken even more time off work and haven't moved any closer to a resolution?

The OP currently seems to be in a position where the seller has £1500 of his money but he has a mattress he can't use, and the two of them are at an impasse.  If I were him I'd be contacting the seller and trying to get a mutually acceptable solution that moves them both forward - whether that's the redelivery of mattress 3, the delivery of a second replacement (mattress 4), an inspection of mattress 2, or a refund.  But I can't see that the OP simply sticking their heels in and saying "I'm quite happy for you to inspect mattress 2 but you have no legal right to do so so I won't let you on principle" helps them achieve a solution.

Personally - if I were convinced that mattress 2 did not conform to contract in some way - I'd happily let the seller inspect it.  But I'd also tell them that if they agreed after inspecting it that it did not conform to contract then I'd want reimbursing for all the extra time I'd taken off work over and above the original delivery of mattress 2.  (I presume that would be time off work for the rejected delivery of mattress 3, time off work for the inspection of mattress 2, and perhaps even more time off work depending on what happens then.)

I'd still like to see some measurements and photos.  Is it an inch too narrow or too wide?  Is it six inches too narrow or too wide?  Is it a slight trapezoid or rhomboid?  I'd be bit concerned that the seller has now had a chance to inspect mattress 3 if they wanted to, might have decided that there is nothing wrong with it, and now wants to look at mattress 2 to see what's wrong with that one if it's meant to be faulty in the same way as mattress 3

If you think the right thing for the company to do is to send mattress 3 back to the OP then OK, but I doubt that's what the OP wants.  (Incidentally, I didn't realise earlier that this was what you were explaining the seller should do in these circumstances.  I thought you were arguing that the seller should simply refund the OP or send a second replacement - mattress 4 - without needing to satisfy themselves that there is in fact something wrong with mattresses 2 and 3 in the first place).

Ath_Wat

the_lunatic_is_in_my_head said:

Ath_Wat said:

the_lunatic_is_in_my_head said:

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

The retailer only has one chance to repair or replace then the consumer can exercise their final right to reject...

But only if the goods are actually faulty in the first place, surely?

I understand your argument that if the retailer has replaced the mattress without examining it, then they could be taken to have accepted that it is faulty.  I understand the argument, but I don't agree with it.  

I think that for the seller to be given only one chance to repair or replace a faulty item, it's entirely reasonable for them to want to inspect it - especially here where the OP is rejecting the third mattress in a row, and the last two mattresses have both had the same unusual(?) fault.

I'd like to see the OP's photos and measurements so I can better understand what they're complaining about.

If the third mattress (which has been returned to the seller) has the same fault as the second mattress, has the OP suggested to the seller that they inspect the third mattress?

the_lunatic_is_in_my_head said:

...If a retailer could turn around and say well it wasn’t a remedy but goodwill this interferes with the final right to reject which is infringing on the consumer’s rights...

But if it wasn't a remedy and was goodwill, that would be giving the OP rights they aren't entitled to, wouldn't it?

I've got no problem with consumer protection giving consumers an advantage over retailers as a general rule, but this doesn't feel quite right to me.

I'd like to see the photos.

If a physical shop accepts change of mind returns it's obvious that this is goodwill as it goes beyond consumer rights.

What the company have done is mirrored consumer rights and then when it's convenient for them said well actually it was goodwill.

The CRA doesn't say anything about the trader inspecting the goods or having to confirm a fault,etc, it says that the goods are taken to not conform unless otherwise demonstrated, in this instance it wasn't otherwise demonstrated and therefore was taken. In my view mattress 2 is done and dusted and belongs to the company.

If the company was acting under goodwill they should have said so, of course if they did and OP hasn't said then all this is pointless  

Ath_Wat said:

the_lunatic_is_in_my_head said:

The retailer only has one chance to repair or replace then the consumer can exercise their final right to reject.

If a retailer could turn around and say well it wasn’t a remedy but goodwill this interferes with the final right to reject which is infringing on the consumer’s rights.

It’s convenient for them to say it was goodwill now but unless they said it before I think it should be taken as the consumer complained the goods did not conform and a remedy was provided. 

They took the customer's word for it that it was faulty.  They sent another.  The customer said that was also faulty with the same fault, that nobody else has complained about,  and returned it.  When they looked at that one they don't think it was faulty.  Now they want to look at the first one.

I am not sure why you have a problem with the idea that a court would find this series of events wholly plausible, as do I.

The defence against your claim that it is "infringing on the consumer’s rights" is that it doesn't, because the customer has no rights to reject it as faulty, as there is nothing wrong with it.

Now had they sent it back for a refund as a distance sale because they didn't like it, that would be a completely different matter.  But they claim it is faulty because it's not a perfect shape.

RE the part in bold, you may say it's a logical conclusion that no one else has complained but it's equally logical others have and that's why they agreed without question, perhaps a faulty batch or perhaps a brand or specific product that known for random faults. You can't say with certainty that no one else has complained in the same way I can't say others have, both are equally plausible in the circumstances.

The OP also hasn't said the company have looked at 3 and told them there's not a problem with it. 

It's a long thread so if I'm incorrect on that 2nd point by missing something that was said by OP about the companies response when 3 got back to them then my apologies, if it's your own narrative it goes in the fiction section   

What the company should do is inspect mattress 3 when it's returned to them, if they disagree with the claim of it being faulty they should return it to OP (and pick up mattress 2).

You could say 2 & 3 are the same so what's the point and just leave OP with 2 but then who knows if they are actually the same, maybe both are as they are meant to be with regards to the problem OP thinks is present but unknown to anyone 2 will fail before 3 due to a completely different fault hiding away. If OP has 3 back and wishes to disagree they can have it inspected themselves, if they are left with 2 they can't have the mattress that should belong to them and be disputed inspected. By this point the whole thing is ridiculously convoluted.

It should also be remembered that any remedy of repair/replace should be done without significant inconvenience, OP has stated why they don't want an inspection, it would mean 2 days off work (one for the inspection and a second for the collection) and they have no more time off work, that's why the company should have collected it and inspected it before sending 3 and at this point we loop back to "what the company should do is inspect mattress 3 when it's returned to them, if they disagree with the claim of it being faulty they should return it to OP (and pick up mattress 2)."

Which is a huge lot of words that once again fails to address that  you, like the OP, are assuming it is faulty when the company's behaviour seems to make it quite clear they don't accept that. As the OP refuses to tell us the exact nature of the "fault", I will draw my own conclusions.
If they know there is a problem with a faulty batch or specific product why send one out and then get suspicious about the second, when they could have expected a similar problem?  I've made that point about 3 times and you won't address it.

And why are you talking about "failing"?  The OP says it's an irregular shape.  Nobody has suggested anything has failed or will fail.

I’m not assuming it’s faulty, I’m saying the legislation says it was taken to be faulty and the company has missed their chance to demonstrate otherwise. 

The point you say I haven’t addressed is academic in my view due to the paragraph above.

Reference to failing was pointing out any mattress could have other problems unknown and may fail in the future, for that reason should the company feel 3 isn’t faulty now it should be 3 that gets returned to the OP, I thought that was explained clearly but going forward we’ll stick to “not conforming to the contract”  

Yet you said earlier there's no legislation that states that, it's just your opinion. I will go back to my first question, if the law says that by providing a replacement without looking they have accepted fault, what law is that?

JetpackVelociraptor

Tell the company to arrange their inspection for a day/time that works for you OP, and let them do it. If you have to take them to court they may be able to successfully argue that they offered the 2nd replacement as a gesture of goodwill. You can see from the replies here that plenty of people think it's reasonable that they get the chance to have it inspected, so entirely plausible that small claims court will think so too.

A court claim could depend heavily on what has been put into writing by both OP and the company. Here's the thing, OP has asked them to treat the second order as a new purchase. Why, I don't know, but the way the company is acting it sounds like they're doing just that. That would mean that rather than rejecting a repaired or replaced item, OP is exercising their 30 day right to reject the new mattress. If you're using your 30 day right to reject the responsibility is on you, the customer, to prove that the product is faulty. That means potentially getting your own independent report done, so it's definitely in your interest as a customer to let the company perform their inspection before you pay out for your own.

The company offering an immediate no quibble exchange for another brand new mattress of the same type could easily be classed as a gesture of goodwill. The 30 day right to reject demands a refund as the resolution, not a replacement, so the company offering a replacement doesn't necessarily count as them accepting that the order was rejected due to being faulty.

It's going to be easier and quicker to let the company do the inspection.

the_lunatic_is_in_my_head

Ath_Wat said:

Yet you said earlier there's no legislation that states that, it's just your opinion. I will go back to my first question, if the law says that by providing a replacement without looking they have accepted fault, what law is that?

I said it's my opinion that the company has missed the boat on mattress 2, I said it's a logical conclusion based upon what the legislation says about burden of proof within the first 6 months as well as the implications such viewpoints would have on the final right to reject. 

Without repeating myself there's nothing else to add really. 

Manxman_in_exile said:

OK.  If you are suggesting that the correct course of action for the company - if they are of the opinion that there is nothing wrong with mattress 3 and they are not now sure about mattress 2 - is to redeliver mattress 3 to the OP, then that seems fair enough.

But I'm not certain that that wouldn't leave the OP in a worse position if they are worried about taking more time off work. Wouldn't they then have to take more time off for the redelivery of mattress 3 and, presuming that they are correct in stating that mattress 3 is faulty, aren't they in the same position as they are now, except they've taken even more time off work and haven't moved any closer to a resolution?

The OP currently seems to be in a position where the seller has £1500 of his money but he has a mattress he can't use, and the two of them are at an impasse.  If I were him I'd be contacting the seller and trying to get a mutually acceptable solution that moves them both forward - whether that's the redelivery of mattress 3, the delivery of a second replacement (mattress 4), an inspection of mattress 2, or a refund.  But I can't see that the OP simply sticking their heels in and saying "I'm quite happy for you to inspect mattress 2 but you have no legal right to do so so I won't let you on principle" helps them achieve a solution.

Personally - if I were convinced that mattress 2 did not conform to contract in some way - I'd happily let the seller inspect it.  But I'd also tell them that if they agreed after inspecting it that it did not conform to contract then I'd want reimbursing for all the extra time I'd taken off work over and above the original delivery of mattress 2.  (I presume that would be time off work for the rejected delivery of mattress 3, time off work for the inspection of mattress 2, and perhaps even more time off work depending on what happens then.)

I'd still like to see some measurements and photos.  Is it an inch too narrow or too wide?  Is it six inches too narrow or too wide?  Is it a slight trapezoid or rhomboid?  I'd be bit concerned that the seller has now had a chance to inspect mattress 3 if they wanted to, might have decided that there is nothing wrong with it, and now wants to look at mattress 2 to see what's wrong with that one if it's meant to be faulty in the same way as mattress 3

If you think the right thing for the company to do is to send mattress 3 back to the OP then OK, but I doubt that's what the OP wants.  (Incidentally, I didn't realise earlier that this was what you were explaining the seller should do in these circumstances.  I thought you were arguing that the seller should simply refund the OP or send a second replacement - mattress 4 - without needing to satisfy themselves that there is in fact something wrong with mattresses 2 and 3 in the first place).

If the company agree 3 doesn't conform I think OP should exercise the final right to reject, get mattress 2 collected, have £1500 refunded and maybe buy from one of the mattress companies that have generous trial periods. 

The problem comes if the company think 3 doesn't have a problem, as they are also going to think 2 doesn't either.

OP would then need an independent inspection to counter, the complication is which mattress should that be, 2 or 3? I think it should be 3 which does cause complications and which ever way you look at it with the company saying either 2 or 3, or both, don't have a problem, OP has a headache to deal with.

Lets say OP lets the company inspect 2 and they say it's fine, OP then has 2 inspected themselves with an inspection in their favour and says see it was faulty, the company could then say but 3 isn't and where does that leave OP. It's a mess, hopefully the company agree 3 has problems which gives the OP a stronger footing to push for their refund. 

born_again

Is the company suppling the mattress the manufacture as well?

It's all well & good, yet again several pages of debate, when what is needed is the OP to comeback & provide some of the info asked for. 🤷‍♀️ They have been back,, but not answered the question. Guess it's lost in the pages of debate 👍

Ath_Wat

the_lunatic_is_in_my_head said:

Ath_Wat said:

Yet you said earlier there's no legislation that states that, it's just your opinion. I will go back to my first question, if the law says that by providing a replacement without looking they have accepted fault, what law is that?

I said it's my opinion that the company has missed the boat on mattress 2, I said it's a logical conclusion based upon what the legislation says about burden of proof within the first 6 months as well as the implications such viewpoints would have on the final right to reject. 

Without repeating myself there's nothing else to add really. 

As long as you accept the significant difference between saying "the law says.." and "in my unqualified interpretation, the law might say.." then  no.

Manxman_in_exile

the_lunatic_is_in_my_head said:

If the company agree 3 doesn't conform I think OP should exercise the final right to reject, get mattress 2 collected, have £1500 refunded and maybe buy from one of the mattress companies that have generous trial periods. 

The problem comes if the company think 3 doesn't have a problem, as they are also going to think 2 doesn't either.

OP would then need an independent inspection to counter, the complication is which mattress should that be, 2 or 3? I think it should be 3 which does cause complications and which ever way you look at it with the company saying either 2 or 3, or both, don't have a problem, OP has a headache to deal with.

Lets say OP lets the company inspect 2 and they say it's fine, OP then has 2 inspected themselves with an inspection in their favour and says see it was faulty, the company could then say but 3 isn't and where does that leave OP. It's a mess, hopefully the company agree 3 has problems which gives the OP a stronger footing to push for their refund. 

My concern - for the OP - is that the seller has now had an opportunity to inspect mattress 3 and may have decided there is nothing wrong with it.  That's why they now want to look at mattress 2.  I know that if I were the seller the first thing I would do after getting mattress 3 back would be to inspect it to see exactly what the OP is complaining about and what this fault is that it has together with mattress 2.  If I couldn't identify a problem with mattress 3 I'd want to look at mattress 2. 

In the circumstances (the seller has £1500 of the OP's money and the OP has a mattress they can't use) I don't see how the OP can progress this without reaching some agreement with the seller - most likely to allow the seller to inspect mattress 2.  If the OP is otherwise willing to allow the seller to inspect the mattress but won't allow them to do so on principle, I'm sure the seller will be equally content to sit on the OP's £1500 on principle.

Once the seller has either agreed or disagreed that there is a "fault" the OP can take whatever action is most appropriate.

I think I'd still like to see what evidence of a fault the OP has.  It wouldn't be to their benefit to become entrenched in the view that there is a definite fault with the mattress if other people were of the reasonable opinion that there wasn't.  The longer this drags on the more it disadvantages the OP in my view.