Counterfeit Mobile Phone Purchased (Facebook Marketplace)

Coffeesurfers

Over the years have both bought and sold several items on Facebook marketplace and up until recently have had some great bargains and sales.
Last week I saw a Facebook marketplace listing with the title "Samsung S22 Ultra" selling for £400

Reading the description, the seller had described the reason for the low price in that he himself had recently purchased this phone and had started having problems, listing storage issue and speaker crackle. He also stated in the listing that he wasn't a technical guy but hoped that someone with more knowledge of these faults could fix

Being an IT guy, I had heard of these faults described and was confident of the fix, so arranged a visit to the sellers home and after inspecting the phone visually and choosing to factory reset I made the purchase via Bank Transfer

However on returning home, something didn't feel right with the operating system and the device was running very very slowly.
Several factory resets and still the slow performance persisted.

It then dawned on me that the device was a Chinese knockoff. Have had several samsung phones previously and the start screen looked off.  Also when launching the Samsung Store from the icon, it launched google play store.  There was no samsung branding or apps at all and even though the about phone details including IMEI and serial number matched the box, it was clear that this was a counterfeit device.

I contacted the seller immediately and after a delay of several hours, he sent a long worded response in a nutshell stating

• I had purchased the phone as seen 
• He had listed performance issues in the Facebook marketplace listing
• He stated he was not technically minded and had not realised the phone was fake
• He mentioned that he would contact his solicitor for guidance on whether or not to issue me a refund

I contacted citizens advice and they advised me to go down the route of raising a Complaint about misdescribed goods 

My personal presumption / angle for a refund, is that the phone was misdescribed as a Samsung S22 Ultra clearly in the listing heading, and what I received was I will admit a very convincing fake device. I had based the purchase on good faith that it was a legitimate samsung.

His angle not to issue a refund, is that he clearly described there was a fault hence the low price in the listing... and that I had purchased it as seen

Am still waiting to hear back from him regarding what his solicitor has advised, however and the reason for this thread, is to ascertain my rights based on the above purchase.

 

pinkshoes

Even for private sales, an item needs to be as described.

They have described it as having defects which is fair enough, BUT they also described it as a SAMSUNG phone, which it is not.

Where did this person buy it from? Have they shown you proof of purchase from a genuine source? (e.g. they bought it from somewhere genuine so had no reason to believe it was counterfeit).

I would go down the route of "not as described" as you have not received a SAMSUNG. Don't mention the defects. I think I would be sending a "letter before action" giving him 7 days to refund in full (and you will return the phone), otherwise you will be contacting the police regarding the sale of counterfeit goods and taking him to a court for a full refund.

macman

Under CRA 2015, your rights with a private seller are very limited. However, the one requirement that the private seller has to comply with is not to misdescribe the goods, which, in this case, he clearly has done, and admitted it. The fact that he did not do this knowingly is not a defence. So I'd say you have every right to a refund on the basis that the goods are not as described.
The fact that he is prepared to check this with his solicitor is probably a good sign that he takes your claim seriously.
If he doesn't, then your next step is an LBA stating that you will be pursuing an action through the small claims process for breach of contract, based on the goods being misdescribed.

Alderbank

You are 'an IT guy', you had technical knowledge of this model of phone, you inspected the phone visually and carried out a factory reset.
As a result of all this you decided that it was a Samsung S22 Ultra or at least was worth whatever money you agreed to pay for it.
It would be useful if you could explain to us why when you examined it you concluded it was a genuine Samsung as described and how you valued it.

I think that the seller will say they reasonably believed it was a Samsung S22 Ultra and will claim that you, as a person with greater knowledge, freely examined it and agreed with that, confirming their belief.

SergeantBaker

pinkshoes said:

Even for private sales, an item needs to be as described.

They have described it as having defects which is fair enough, BUT they also described it as a SAMSUNG phone, which it is not.

Where did this person buy it from? Have they shown you proof of purchase from a genuine source? (e.g. they bought it from somewhere genuine so had no reason to believe it was counterfeit).

I would go down the route of "not as described" as you have not received a SAMSUNG. Don't mention the defects. I think I would be sending a "letter before action" giving him 7 days to refund in full (and you will return the phone), otherwise you will be contacting the police regarding the sale of counterfeit goods and taking him to a court for a full refund.

OP, I wouldn't bother making any threats to involve the police. It's highly unlikely you'll get any assistance or interest from them. 

macman

I don't think that the possibility of it being counterfeit even crossed the OP's mind at that point. It was sold as having a fault, which he believed explained the poor performance. 
Selling something that is counterfeit cannot be justified by claiming that you didn't know it was. It's not a defence against a civil claim. It's still misdescribed, knowingly or unknowingly.
All the indications are that the vendor has also been deceived, but that doesn't remove his liability to the OP.

pinkshoes

Alderbank said:

You are 'an IT guy', you had technical knowledge of this model of phone, you inspected the phone visually and carried out a factory reset.
As a result of all this you decided that it was a Samsung S22 Ultra or at least was worth whatever money you agreed to pay for it.
It would be useful if you could explain to us why when you examined it you concluded it was a genuine Samsung as described and how you valued it.

I think that the seller will say they reasonably believed it was a Samsung S22 Ultra and will claim that you, as a person with greater knowledge, freely examined it and agreed with that, confirming their belief.

I disagree. As an "IT guy" the op was examining it for the stated defect. The OP has said himself that it is a good fake, so I think it is fair enough this wasn't spotted at the time. 

Coffeesurfers

pinkshoes said:

Alderbank said:

You are 'an IT guy', you had technical knowledge of this model of phone, you inspected the phone visually and carried out a factory reset.
As a result of all this you decided that it was a Samsung S22 Ultra or at least was worth whatever money you agreed to pay for it.
It would be useful if you could explain to us why when you examined it you concluded it was a genuine Samsung as described and how you valued it.

I think that the seller will say they reasonably believed it was a Samsung S22 Ultra and will claim that you, as a person with greater knowledge, freely examined it and agreed with that, confirming their belief.

I disagree. As an "IT guy" the op was examining it for the stated defect. The OP has said himself that it is a good fake, so I think it is fair enough this wasn't spotted at the time. 

You are correct, there is only so many critical checks one can do when viewing in someones home! 

The casing looked identical to an official model and again I compared the about info with the box which matched. In hindsight, I should have questioned where the phone was purchased from previously and again, when your in someones home, the "inspection time" was limited to a limited amount of items - eg does it power on, does the screen work.

I didn't go into the guys house with any suspicions, and my previous checks such as an IMEI check all matched.  

cmthephoenix

At the end of the day because it is facebook marketplace all you can do is take the seller to court.
If you send a Letter Before Action the seller may capitulate because they don't want to go through the legal system. They may not, in which case you have the minimal legal costs which you may get no hope of recovering.

Have you asked the seller where they got the phone from (edit - sorry I've just seen in a reply that you haven't)? If they got the phone in good faith that gives a different spin to if they were deliberately trying to defraud you.

macman

cmthephoenix said:

At the end of the day because it is facebook marketplace all you can do is take the seller to court.
If you send a Letter Before Action the seller may capitulate because they don't want to go through the legal system. They may not, in which case you have the minimal legal costs which you may get no hope of recovering.

Have you asked the seller where they got the phone from (edit - sorry I've just seen in a reply that you haven't)? If they got the phone in good faith that gives a different spin to if they were deliberately trying to defraud you.

No it doesn't. If the item is misdescribed then it's a breach of contract, whether misdescribed knowingly or unknowingly.

cmthephoenix

macman said:

cmthephoenix said:

Have you asked the seller where they got the phone from (edit - sorry I've just seen in a reply that you haven't)? If they got the phone in good faith that gives a different spin to if they were deliberately trying to defraud you.

No it doesn't. If the item is misdescribed then it's a breach of contract, whether misdescribed knowingly or unknowingly.

Purely as devil's advocate it would be interesting to see what a court made of that. I can see from both seller and buyer points of  view. If the phone describes itself as a 'Samsung S22 Ultra' in its about phone info then you are accurately describing it unless you know any different. I haven't done any research into it but what happens when people sell art at auction that later turns about to be fake? Does the buyer get refunded and if so by whom - the auction house or the seller? That would seem to be a similar scenario.