Do I still have the right to a repair or a replacement?

the_lunatic_is_in_my_head

bris said:

In short no, or maybe not.

The time agreed was well exceeded, so much so that its likely that acceptance has occurred now.

@bris Acceptance is a concept from the Sale of Goods Act 1979, which whilst still active states:

https://www.legislation.gov.uk/ukpga/1979/54/section/35

[F3(9)This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 21 of that Act).]

(Chapter 2 of the CRA covers everything about goods). 

There is no mention of acceptance in the CRA and it would undermine, for example, the requirement for goods to be durable, ultimately the consumer can't be denied a remedy under the concept that they have accepted the goods. 

bris said:

Would a court agree, probably, its certainly unreasonable to wait 9 months to return it. It's value would be seriously diminished and that's not the retailers fault.

Diminished value is a concept under the cancellation regs (for excessive handling in instances where the consumer withdraws from the contract due to changing their mind) and again isn't a part of the CRA.

If the goods do not conform the consumer is entitled to a repair/replacement and the value of the goods in their current state doesn't affect this*

If repair/replace doesn't occur then it's refund/price reduction, within 6 months if a refund is opted for it's a full refund, after 6 months a deduction may be made to take account of the use the consumer has had of the goods in the period since they were delivered. 

*You may argue the seller could claim some kind of damages had the goods not conformed but the buyer's negligence devalued them further, for example a laptop with a broken hinge poorly packaged for return resulting in a damaged screen. 

Generally speaking the age of an item doesn't affect it's value, either the handle can be repaired and the item would be second hand/used/professionally refurbished but in that instance 2 months, 9 months, the time isn't going to affect the value as it wouldn't be possible to establish the age of the item regardless or if it can't be repaired it's broken and worth less/worthless anyway. 

Of course something like a car or tech may be worth less over time and perhaps that gives the trader a claim for damages. 

born_again

the_lunatic_is_in_my_head said:

Is short yes.

There is no time limit for seeking a remedy if the goods do not conform.

The trader has accepted they don’t by offering a remedy in the first instance.

The only issue is as it’s now past 6 months, if the trader refused to repair/replace and you was left seeking a refund they might be able to reduce it. The regs say such a reduction is for use, if it were clear the item couldn’t be used with a broken handle then they might not have justification for a reduction. 

Regarding returns the consumer has a duty to return the goods if they have agreed to (presumably by way of T&Cs), if not the trader should collect, either way the trader should bear the cost.

How did you pay OP? 

Well you can forget any chargeback. Well out of time.
I would also lay odds that if OP did pay on a CC, that a S75 would be rejected, on the basis of no T/C broken. As CC will just follow retailers stance on the time taken to return.

tightauldgit

the_lunatic_is_in_my_head said:

Is short yes.

There is no time limit for seeking a remedy if the goods do not conform.

The trader has accepted they don’t by offering a remedy in the first instance.

The only issue is as it’s now past 6 months, if the trader refused to repair/replace and you was left seeking a refund they might be able to reduce it. The regs say such a reduction is for use, if it were clear the item couldn’t be used with a broken handle then they might not have justification for a reduction. 

Regarding returns the consumer has a duty to return the goods if they have agreed to (presumably by way of T&Cs), if not the trader should collect, either way the trader should bear the cost.

How did you pay OP? 

The OP is claiming that the item arrived damaged, and yet waited 2 months to tell them. So I think straight away we are on shaky ground. Offering a remedy is not acceptance that it did not confirm - could merely be a goodwill gesture on the part of the seller. 

If it was a goodwill gesture then also probably reasonable to refuse to honour it when the item arrives unannounced 10 months later. Not least of all because such a delay may prevent them getting any remedy from their supplier if the item was indeed faulty from the off or offering a replacement if say the item has been discontinued or is out of stock.

The thing that does seem off though is that reading the OP the supplier seems to both have their item and their money. 

 

tightauldgit

Manxman_in_exile said:

bris said:

the_lunatic_is_in_my_head said:

Is short yes.

There is no time limit for seeking a remedy if the goods do not conform.

The trader has accepted they don’t by offering a remedy in the first instance.

The only issue is as it’s now past 6 months, if the trader refused to repair/replace and you was left seeking a refund they might be able to reduce it. The regs say such a reduction is for use, if it were clear the item couldn’t be used with a broken handle then they might not have justification for a reduction. 

Regarding returns the consumer has a duty to return the goods if they have agreed to (presumably by way of T&Cs), if not the trader should collect, either way the trader should bear the cost.

How did you pay OP? 

... The time agreed was well exceeded, so much so that its likely that acceptance has occurred now...

Does the legislation mention anything about "acceptance"?

bris said:

the_lunatic_is_in_my_head said:

Is short yes.

There is no time limit for seeking a remedy if the goods do not conform.

The trader has accepted they don’t by offering a remedy in the first instance.

The only issue is as it’s now past 6 months, if the trader refused to repair/replace and you was left seeking a refund they might be able to reduce it. The regs say such a reduction is for use, if it were clear the item couldn’t be used with a broken handle then they might not have justification for a reduction. 

Regarding returns the consumer has a duty to return the goods if they have agreed to (presumably by way of T&Cs), if not the trader should collect, either way the trader should bear the cost.

How did you pay OP? 

... The time agreed was well exceeded...

...Would a court agree, probably, its certainly unreasonable to wait 9 months to return it. It's value would be seriously diminished and that's not the retailers fault.

AIUI the OP says he didn't agree to return it, so my understanding of the CRA (like the lunatic's) is that all the OP is required by law to do is to make it available for collection by the seller.  Would that not make it the seller's fault?

Isn't the point of the legislation to put the responsibility for sorting out faulty goods on the shoulders of the trader, who in this case has agreed that the item is faulty to the extent that they've said they'll repair it?

(Certainly in the case of goods that are being rejected, all the consumer needs to do is to make the goods available for collection by the seller, unless they've agreed otherwise.  If they haven't, they're under no obligation to return them, s20(7) CRA.  I'm not sure that goods for repair should be treated differently.)

The OP says they HAVE returned it, so can't really say they haven't agreed to a return.

the_lunatic_is_in_my_head

born_again said:

the_lunatic_is_in_my_head said:

Is short yes.

There is no time limit for seeking a remedy if the goods do not conform.

The trader has accepted they don’t by offering a remedy in the first instance.

The only issue is as it’s now past 6 months, if the trader refused to repair/replace and you was left seeking a refund they might be able to reduce it. The regs say such a reduction is for use, if it were clear the item couldn’t be used with a broken handle then they might not have justification for a reduction. 

Regarding returns the consumer has a duty to return the goods if they have agreed to (presumably by way of T&Cs), if not the trader should collect, either way the trader should bear the cost.

How did you pay OP? 

Well you can forget any chargeback. Well out of time.
I would also lay odds that if OP did pay on a CC, that a S75 would be rejected, on the basis of no T/C broken. As CC will just follow retailers stance on the time taken to return.

CC was my thinking.

I'm not sure what you mean by T&Cs but if you mean the terms of the contract, they are broken as the requirements of the CRA are implied terms meaning they are included regardless of being stated and the OP is entitled to a remedy. 

I fail to see what justification the CC company or the retailer can place not to provide a remedy as there is no time limit imposed for seeking a remedy.

The only obstacle is that as it has gone past 6 months OP may be required to demonstrate the goods do not conform, as these things are all balance of probability my view is it was taken they didn't conform when first reported (as per the legislation) and if I were the OP I would be using that as my position to avoid having to demonstrate it now.

I also assume the CC company wouldn't fancy small claims on a case like where there is ambiguity, over a relatively small amount of £300 or so?  

the_lunatic_is_in_my_head

tightauldgit said:

The OP is claiming that the item arrived damaged, and yet waited 2 months to tell them. So I think straight away we are on shaky ground. 

 

There is no shaky ground here, the regs are clear:

https://www.legislation.gov.uk/ukpga/2015/15/section/19/enacted

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

It would be down to the trader to demonstrate otherwise (e.g if want to say the OP broke the handle they'd need something on the balance of probability to show their claim). 

tightauldgit said:

Offering a remedy is not acceptance that it did not confirm - could merely be a goodwill gesture on the part of the seller. 

I don't agree with this, after 1 repair or replacement attempt the consumer is entitled to reject the goods/seek a price reduction, should the trader be permitted after the fact to say "well it wasn't a remedy under the CRA, just a bit of goodwill" it would undermine other principles of the act.

This is one of those situations where there is a difference between what sounds "right" and what is afforded by the legislation.

tightauldgit said:

 Not least of all because such a delay may prevent them getting any remedy from their supplier if the item was indeed faulty from the off or offering a replacement if say the item has been discontinued or is out of stock.

This would be irrelevant as the consumer would simply then be entitled to a refund or price reduction, a refund bears no real additional cost to the trader than a replacement does.

OK prices go up and down a bit but the legislation can't consider every tiny detail like this that gets entered into these topics, sometimes it's fair, sometimes it isn't. 

 

tightauldgit

the_lunatic_is_in_my_head said:

tightauldgit said:

The OP is claiming that the item arrived damaged, and yet waited 2 months to tell them. So I think straight away we are on shaky ground. 

 

There is no shaky ground here, the regs are clear:

https://www.legislation.gov.uk/ukpga/2015/15/section/19/enacted

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

It would be down to the trader to demonstrate otherwise (e.g if want to say the OP broke the handle they'd need something on the balance of probability to show their claim). 

tightauldgit said:

Offering a remedy is not acceptance that it did not confirm - could merely be a goodwill gesture on the part of the seller. 

I don't agree with this, after 1 repair or replacement attempt the consumer is entitled to reject the goods/seek a price reduction, should the trader be permitted after the fact to say "well it wasn't a remedy under the CRA, just a bit of goodwill" it would undermine other principles of the act.

This is one of those situations where there is a difference between what sounds "right" and what is afforded by the legislation.

tightauldgit said:

 Not least of all because such a delay may prevent them getting any remedy from their supplier if the item was indeed faulty from the off or offering a replacement if say the item has been discontinued or is out of stock.

This would be irrelevant as the consumer would simply then be entitled to a refund or price reduction, a refund bears no real additional cost to the trader than a replacement does.

OK prices go up and down a bit but the legislation can't consider every tiny detail like this that gets entered into these topics, sometimes it's fair, sometimes it isn't. 

 

1. The consumer isn't saying it didn't conform 2 months later when they reported it though - they are saying that it arrived broken and then they sat on it for 2 months before doing anything about it. And whether the legislation explicitly says it or not I think that leaves the retailer in the reasonable position of saying 'we don't believe it arrived broken, because you didn't tell us about it until you had it for 2 months. More likely you broke it through mishandling or misuse.' I think that's de facto 'on the balance of probabilities' more likely because a reasonable person doesn't wait two months to contact a seller on something that's arrived broken. 

2. Unless its specifically stated that they are seeking a remedy under the CRA or that the supplier is providing a remedy under the CRA then there's every possibility that the replacement was a goodwill gesture. It's certainly not a legal admission of anything. Sometimes suppliers provide service over and above statutory minimums - but you can't take that as an admission that in fact the response was necessitated by the statute.

3. Not at all, if it came to court and the supplier could show that the negligence/inaction of the consumer has meant they have incurred real costs then it would be reasonable to deduct those costs from the settlement. If the item has arrived broken then the seller has recourse to the courier and/or the supplier to get compensation for a faulty unit. But if the item doesn't come back until 12 months later then those avenues are likely time-barred. 

I appreciate that you like to interpret the legislation as far in favour of the consumer as possible but frankly when the consumer does nothing to help themself I have little sympathy. If i was the retailer I'd be giving them nothing other than the option of them paying to have their item returned until a court told me otherwise.   

elsien

Ref your point 1. The retailer appears to have already accepted the fault from the photos that were sent. 

The debate now is whether the nine months it’s taken to send it back since then has affected those rights. And whether the item has been completely unusable for that time or even with a broken handle the OP has still had some use from it.

tightauldgit

elsien said:

Ref your point 1. The retailer appears to have already accepted the fault from the photos that were sent. 

The debate now is whether the nine months it’s taken to send it back since then has affected those rights. And whether the item has been completely unusable for that time or even with a broken handle the OP has still had some use from it.

From my POV agreeing to replace something to keep the customer sweet doesn't necessarily mean you accept what they say or more importantly are tied to that legal position though. It would obviously depend on exactly what they've said in any correspondence but unless they've said they accept the customer's position explicitly then I think they could argue that they were prepared to go above and beyond the minimum legal requirement if the customer returned the item promptly not almost a year later.

  

the_lunatic_is_in_my_head

tightauldgit said:

1. The consumer isn't saying it didn't conform 2 months later when they reported it though - they are saying that it arrived broken and then they sat on it for 2 months before doing anything about it. And whether the legislation explicitly says it or not I think that leaves the retailer in the reasonable position of saying 'we don't believe it arrived broken, because you didn't tell us about it until you had it for 2 months. More likely you broke it through mishandling or misuse.' I think that's de facto 'on the balance of probabilities' more likely because a reasonable person doesn't wait two months to contact a seller on something that's arrived broken. 

I appreciate as time goes by it introduces doubt but forget the OP for a second and say someone buys something and they break the handle, they merely have to claim it wasn't durable and would be entitled to a remedy (unless the trader could show it was durable).

With things like TVs and washing machines it is far easier to examine them and determine why an issue occurred, determining why a handle broke could be near impossible (or perhaps more accurately economically unviable) and within those first 6 months that is the trader's burden. 

The trader doesn't have the option to merely say they don't believe you, they must demonstrate the goods did conform, simply saying so doesn't mean it's true on the balance of probability and given the durability factor it is more likely someone claiming something like a handle broken is transit is telling the truth. 

tightauldgit said:

2. Unless its specifically stated that they are seeking a remedy under the CRA or that the supplier is providing a remedy under the CRA then there's every possibility that the replacement was a goodwill gesture. It's certainly not a legal admission of anything. Sometimes suppliers provide service over and above statutory minimums - but you can't take that as an admission that in fact the response was necessitated by the statute.

I simply don't agree for the reason for already stated There's also no requirement for the consumer to state they are seeking a remedy under the CRA (compared to the cancellation regs as an example where the consumer must make a clear statement). I think if a company wishes to rely on something being offered as goodwill it should be stated at the time, that seems perfectly reasonable to me.

tightauldgit said:

3. Not at all, if it came to court and the supplier could show that the negligence/inaction of the consumer has meant they have incurred real costs then it would be reasonable to deduct those costs from the settlement. If the item has arrived broken then the seller has recourse to the courier and/or the supplier to get compensation for a faulty unit. But if the item doesn't come back until 12 months later then those avenues are likely time-barred. 

The trader choosing to use a third party for delivery to occur is at their risk, a consumer not opening a box for 2 months isn't negligence in any sense of the word, if it were to be there would be a stipulation in the legislation to account for it.

Delivery doesn't mean by courier, it means the passing of goods from the trader to the consumer, if the trader wishes to use a third party to fulfil their obligation and that third party places a time limit on making a claim for damage that is their risk to bear and can't be used against the consumer for exercising their rights. 

tightauldgit said:

I appreciate that you like to interpret the legislation as far in favour of the consumer as possible but frankly when the consumer does nothing to help themself I have little sympathy. If i was the retailer I'd be giving them nothing other than the option of them paying to have their item returned until a court told me otherwise.   

Your sympathy, or lack of, doesn't have any bearing on what OP is entitled to  

In terms of preferring to wait for a claim to be made a decided by a judge that is a perfectly acceptable preference, but as OP is (presumably) a consumer I believe they can apply to have the case heard in their local court, how much time and money are you going to spend as a business over £300 (possibly minus VAT with a potential to repair the item and cover some loses)?

A smart business would write it off and I say that as someone who ran one for nearly 2 decades. As much as it's tempting to give in to the frustration and put your principles first, the sole purpose of a business is to make money and fighting a claim like this in small claims out of principle because the customer didn't help themselves goes against that purpose IMO