64% cut from Partial Refund while in Warranty

Okell

Otter23 said:

... Does the term "replacement" mean that can include a used product that would be 3rd hand if I took it?
Another poster stated above: "Guidance notes on the CRA say if the item was new then a replacement should also be new".

I'm aware that both @DullGreyGuy and @the_lunatic_is_in_my_head have suggested that if the purchased item was new, then any replacement should also be new - but I'm not sure that can be correct.

You basically have a used two year old card that has failed.  Assuming you have any right to a replacement under the Consumer Rights Act*, I'd have thought you weren't entitled to anything better than a used two year old replacement - or equivalent.

I base that view on analogy with the right to a refund.  If a purchased item fails in the first six months and the retailer cannot successfully either repair or replace it, the consumer is essentially entitled to a full refund.  But in the case of an item that fails after six months, the seller can reduce the amount of refund to reflect the use the consumer has had of the item.

I can see no indication in the wording of the legislation (as opposed to the wording of the guidance) to suggest that after six months the consumer should have a more favourable right to a replacement (ie a brand new item) than they would to a refund (ie reduced to reflect their usage of the failed item).

I think what the guidance is meant to mean is that if a consumer purchases a brand new item that fails immediately (or perhaps within the first six months...) then the retailer can't get away with providing anything other than an equally brand new item.  But after six months I'm not so sure...


*And as previously posted, I suspect you may have lost any rights under the CRA by modifying the card in the first place

the_lunatic_is_in_my_head

Okell said:

Because you've modified the card I honestly don't think you have much hope of a remedy against Scan under the Consumer Rights Act.

It would really depend upon how such a modification affects the "fault", know nothing about such items so can't say either way, but if it wasn't a factor in causing the fault I don't see any reason OP isn't entitled to a remedy.

I don't know if OP answered, if it can be fixed a price reduction to cover the repair is the easiest answer all round. 

Okell said:

I'm aware that both @DullGreyGuy and @the_lunatic_is_in_my_head have suggested that if the purchased item was new, then any replacement should also be new - but I'm not sure that can be correct.

I think the benefit of getting a brand new item would be countered with disproportionate cost clause so there's possibly an argument for the retailer not having to provide one but equally an argument for the consumer not to have to accept a replacement that isn't new. 

@Okell you sound familiar  

DullGreyGuy

Okell said:

Otter23 said:

... Does the term "replacement" mean that can include a used product that would be 3rd hand if I took it?
Another poster stated above: "Guidance notes on the CRA say if the item was new then a replacement should also be new".

I'm aware that both @DullGreyGuy and @the_lunatic_is_in_my_head have suggested that if the purchased item was new, then any replacement should also be new - but I'm not sure that can be correct.

https://www.legislation.gov.uk/ukpga/2015/15/notes/division/3/1/3/4/5

Accepting it is guiding notes not the legislation itself but it states:

A replacement would usually need to be identical, that is of the same make and model and if the goods were bought new then the replacement would need to be new.

Usually, to me at least, would mean its the standard outcome, its not the exceptional circumstance of it happening in the first 6 months,

Your comments are somewhat backwards though... its not the OP that has the right to demand a brand new replacement but the merchant that has the right to choose between the three options of repair, replace or refund. If they agree with you that giving a brand new item isnt economical for them then they just choose one of the other two options. This is captured in clause 23(3)(b)

the_lunatic_is_in_my_head

DullGreyGuy said:

https://www.legislation.gov.uk/ukpga/2015/15/notes/division/3/1/3/4/5

Accepting it is guiding notes not the legislation itself but it states:

A replacement would usually need to be identical, that is of the same make and model and if the goods were bought new then the replacement would need to be new.

Usually, to me at least, would mean its the standard outcome, its not the exceptional circumstance of it happening in the first 6 months,

Your comments are somewhat backwards though... its not the OP that has the right to demand a brand new replacement but the merchant that has the right to choose between the three options of repair, replace or refund. If they agree with you that giving a brand new item isnt economical for them then they just choose one of the other two options. This is captured in clause 23(3)(b)

But of course the legislation says

is disproportionate compared to the other of those remedies.

The other rather than others would imply a comparison between only repair and replace rather than a comparison between repair, replace and refund.

As always, there isn't any "choice" for the trader, there is an obligation to repair or replace, if that doesn't occur there is a choice for the consumer, final right to reject (for a refund) or a price reduction. 

Stating this idea that it's the trader's choice erodes the consumer's rights by making them believe it's OK for the retailer not to bother to repair/replace lessening the likelihood of the consumer challenging the trader's position and insisting upon their rights. 

tightauldgit

the_lunatic_is_in_my_head said:

DullGreyGuy said:

https://www.legislation.gov.uk/ukpga/2015/15/notes/division/3/1/3/4/5

Accepting it is guiding notes not the legislation itself but it states:

A replacement would usually need to be identical, that is of the same make and model and if the goods were bought new then the replacement would need to be new.

Usually, to me at least, would mean its the standard outcome, its not the exceptional circumstance of it happening in the first 6 months,

Your comments are somewhat backwards though... its not the OP that has the right to demand a brand new replacement but the merchant that has the right to choose between the three options of repair, replace or refund. If they agree with you that giving a brand new item isnt economical for them then they just choose one of the other two options. This is captured in clause 23(3)(b)

But of course the legislation says

is disproportionate compared to the other of those remedies.

The other rather than others would imply a comparison between only repair and replace rather than a comparison between repair, replace and refund.

As always, there isn't any "choice" for the trader, there is an obligation to repair or replace, if that doesn't occur there is a choice for the consumer, final right to reject (for a refund) or a price reduction. 

Stating this idea that it's the trader's choice erodes the consumer's rights by making them believe it's OK for the retailer not to bother to repair/replace lessening the likelihood of the consumer challenging the trader's position and insisting upon their rights. 

Interesting. I follow your logic here but the next section of the Act seems to contradict it. Section 24, 5 (b) suggests that at least sometimes the consumer can not require either solution. And also that if they don't bother to do it then the recourse is to get a refund anyway. So while the Act may not say the trader has a choice to refund, it certainly seems to have the effect of giving them the choice to refund in practical terms. Not to mention that in general a court is only ever going to award financial losses in the end anyway

Would be interesting to see if there is any case law anywhere where a consumer has required specific performance of a repair or replacement and been awarded it based on the section you quote.

(5)A consumer who has the right to a price reduction and the final right to reject may only exercise one (not both), and may only do so in one of these situations—

(a)after one repair or one replacement, the goods do not conform to the contract;

(b)because of section 23(3) the consumer can require neither repair nor replacement of the goods; or

(c)the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.

the_lunatic_is_in_my_head

tightauldgit said:

Interesting. I follow your logic here but the next section of the Act seems to contradict it. Section 24, 5 (b) suggests that at least sometimes the consumer can not require either solution. And also that if they don't bother to do it then the recourse is to get a refund anyway. So while the Act may not say the trader has a choice to refund, it certainly seems to have the effect of giving them the choice to refund in practical terms. 

100% correct, if the trader simply doesn't bother they are creating their own choice by default. 

Often traders will know their obligations but hope you don't, some won't care either way but some may back down when faced with someone who is aware. If posters go back to the retailer and say "actually I have the right to a replace/replacement" some of those people may get what they are entitled to rather than accepting a refund as it's touted as the trader's "choice". 

In many cases a refund/price reduction will do the job but in some situations, say a laptop that has lots of information on it or even something like a bicycle where the owner has added improvements, say better tyres or similar, a repair may be more suited and typically (obviously not always) I would expect a repair to be cheaper than a replacement and possible.  

ndev2k

@Otter23

What was the outcome of this thread? I am only asking as I RMA'd my Zotac 3080 a few weeks back and they sent it to Zotac who confirmed it as faulty. Zotac say they will not be able to repair or replace the card so will provide a credit note to Scan. Scan then say they will arrange a replacement based on the amount of the credit note.

I am just trying to get an idea of how they are going to press ahead.