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

bris

The seller was never give the chance to verify any fault so its a mute point, it could be used for nine months then sent back, no one will agree to that.

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods

the_lunatic_is_in_my_head

bris said:

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods

I know what acceptance is The point however is it no longer applies to a consumer contract for the sale of goods as the SOGA was superseded by the CRA, 8 years ago. 

bris said:

The seller was never give the chance to verify any fault so its a mute point, it could be used for nine months then sent back, no one will agree to that.

In all honesty I'm not sure how to respond to that other than to politely say it's fundamentally incorrect.  

HillStreetBlues

Been reading this thread with interest.
Seems I'm agreeing with both sets of views.
So I'm off to get the splinters removed.

Manxman_in_exile

the_lunatic_is_in_my_head said:

bris said:

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods

I know what acceptance is The point however is it no longer applies to a consumer contract for the sale of goods as the SOGA was superseded by the CRA, 8 years ago. 

bris said:

The seller was never give the chance to verify any fault so its a mute point, it could be used for nine months then sent back, no one will agree to that.

I did ask them on Saturday why they thought the concept of "acceptance" was applicable here after they'd first brought it up on Friday.  They didn't respond but are still repeating it as if that will make it correct.

tightauldgit

the_lunatic_is_in_my_head said:

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  

1. Yes if someone broke an item after 2 months and called up the next day and said it's broken then on the balance of probabilities it probably was. If someone says an item arrived broken but doesn't bother saying anything until 2 months later then it's not really the same. 

2. And if the consumer wishes to rely on the company admitting the item didn't conform then they should be able to point to the company explicitly admitting the item didn't confirm. Not merely assume it from them offering a remedy which may or may not be something they offer regardless. That also seems reasonable to me.

3. We are not just talking about not opening a box for two months. But also not bothering to return the item for 10 more. So a year passed between them supposedly receiving a damaged item and the seller receiving it back. It's completely unreasonable.

4. You might think it's not economical to wait for a court hearing - but I would take my chances that someone who takes a year to send back a parcel can get round to lodging a court case within 6.  

the_lunatic_is_in_my_head

tightauldgit said:

2. And if the consumer wishes to rely on the company admitting the item didn't conform then they should be able to point to the company explicitly admitting the item didn't confirm. Not merely assume it from them offering a remedy which may or may not be something they offer regardless. That also seems reasonable to me.

Just to be clear the consumer doesn't need to rely on the company admitting the goods do not conform, when they reported the matter it was taken the goods didn't conform and it was the trader's burden to demonstrate otherwise if they wished, which they didn't do

You may say that's because the OP didn't return but the company was welcome to push the matter, and maybe they did, we don't know, as is common with a with a lot of these topics we get few details and end up down a road of too many variables, rights are simple, goods taken to conform within 6 months, after 6 months they aren't, there is no time limit to seek a remedy (other than 6 years to enforce), the rest of the info the original poster leaves out, or doesn't wish to say, is for them to puzzle in. 

OP says they had a family illness, I'm not going to pry into their personal life, perhaps someone had a cold, perhaps someone was in hospital for 9 months, either way being unreasonable doesn't affect their rights (maybe it would affect the court awarding costs?)

tightauldgit said:

1. Yes if someone broke an item after 2 months and called up the next day and said it's broken then on the balance of probabilities it probably was. If someone says an item arrived broken but doesn't bother saying anything until 2 months later then it's not really the same. 

That still doesn't affect their rights, you might see companies saying you must report damage in transit within 48 hours, 7 days, 30 days, but the legislation has imposed a time of burden of proof rather than a time of raising the matter, so effectively you have 6 months to report damage upon arrival as after that it's likely going to be very hard for you as the consumer to demonstrate (but that's not to suggest it isn't sensible to do it asap to avoid a headache).