Am I entitled to the same discount for a replacement item as the original item that wasn't delivered

Brian_s

We purchased 3 goods from Samsung Shop online - Washing Machine, Fridge Freezer and Vacuum cleaner. A Discount of 25 percent was given for the 3 items together.

The Washing machine was dispatched on 2nd November to arrive on 3rd November but didn't arrive with the courier! After 3 weeks of emails, phone calls, waiting and many trips to the launderette, we received an automatic refund from Samsung for the discounted value we paid. We did not ask for a refund, but Samsung said it was automatic. 

We lost our 25% discount and Samsung refused to allow us 25% off another Washing machine as the one we ordered was now out of stock. 

As we would not have purchased the washing machine as a single item, i.e. we only purchased it in order to obtain 25% discount of £157 off the washing machine, are we not entitled to the same 25% discount off another washing machine of equal or greater value (whichever they have in stock)?

ArbitraryRandom

Under the Consumer Rights Act, your rights related related to non-delivery are:

Delivery within a reasonable time: The trader must deliver the goods without undue delay and by default not more than 30 days from the day the contract is entered into (unless otherwise agreed).

Right to cancel if delivery exceeds 30 days: If the trader is unable to deliver the goods within the agreed timeframe or within 30 days, the you have the right to cancel the contract and receive a full refund.

Risk passes with ownership: The trader is responsible for ensuring that the goods are delivered to you. The risk of loss or damage to the goods passes to you when (if) they are delivered.

Right to a refund: If the goods are not delivered, the you have the right to a refund of any money paid, including delivery costs.

I'd suggest you MIGHT have an argument that they should send you one when it's back in stock at the agreed price if you are happy to wait... but generally speaking if the item is out of stock at the time of the problem/during the 30 day delivery window then a replacement is 'impossible' and the only choice is a refund, and given they've already issued that then the part of the contract related to that item is probably already considered 'ended'.  

You MIGHT also have a chance (again not likely given they've already refunded) if they would replace the missing item with another item that was on the same offer at the time you ordered... basically arguing loss of opportunity to purchase one of the other machines. Loss of opportunity is fairly hard to prove though and involves a lot of documentation should you end up in small claims - it's not loss of that 25% discount, but loss of the chance to buy a different appliance which was on sale at the time and is now more expensive.  

But in answer to your question, there isn't a direct provision in consumer protection laws that mandates a discount on a different item due to a non-delivery or unavailability of the originally ordered item so I certainly can't see how you would have any right to the 25% discount on an item which was not in the original sale or that is a higher value. 


Just to clarify, did you retain the 25% discount on the other two appliances when you were refunded the cost of the third appliance? I would suggest you would still be within the timeframe to return the vacuum or freezer if you are saying you would not have purchased them if not for the washing machine (you have 30 days to reject the whole order).

the_lunatic_is_in_my_head

Hello OP

Looking at the site acceptance occurs upon dispatch so you have a contract, the above is correct that as far as consumer rights go, under delivery of goods your right in the event of non-delivery is to treat the contract at an end for a full refund. However they have still breached the contract and the CRA notes you are entitled seek other remedies including damages. 

That said the best thing to do is to send a polite message to the CEO office, Samsung makes this straightforward at the link on their website:

https://www.samsung.com/uk/support/contact/email-the-ceo/

Whilst the CEO themselves won't reply the customer service team there hopefully have more decision making ability to correct something like this.  

pinkshoes

Has the 25% discount remained on the other two items?

If it has then technically you're doing well, as you got a 25% discount for buying two items and not all three!

Or did the refund mean that you have now paid full price for the vacuum and fridge, and were then refunded the remaining amount? In which case, I'd have been wanting them to collect all three items for a full refund as it seems a little unfair to purchase at 25% off then get the discount removed after they'd been delivered. 

RHemmings

Does not 'loss of bargain' apply in this case? I.e. if the OP has to pay more to get a like and similar item, then can't they sue Samsung for the price difference? 

ArbitraryRandom

RHemmings said:

Does not 'loss of bargain' apply in this case? I.e. if the OP has to pay more to get a like and similar item, then can't they sue Samsung for the price difference? 

Only in a limited fashion if other items were on sale at the time of purchase and the OP now does not have an opportunity to buy them. 

'Loss of opportunity/bargain' is tort rather than statue law, so there's nothing easy to point to re 'rights' - and the issue is the consumer rights act gives the avenue for the seller to 'end' (aka terminate) the contract by providing a refund (meaning there has been no 'breach' of contract to result in liability for damage).

Basically, if the OP brought a small claims case for damages, the seller would argue they had the item available at the contracted price, dispatched the item, and the item was lost through no fault of their own - they were unable to replace the item (like for like) as there was no remaining stock of that model, so the CRA requires them to refund, ending that part of the contract... 

the_lunatic_is_in_my_head

ArbitraryRandom said:

RHemmings said:

Does not 'loss of bargain' apply in this case? I.e. if the OP has to pay more to get a like and similar item, then can't they sue Samsung for the price difference? 

'Loss of opportunity/bargain' is tort rather than statue law, so there's nothing easy to point to re 'rights' - and the issue is the consumer rights act gives the avenue for the seller to 'end' (aka terminate) the contract by providing a refund (meaning there has been no 'breach' of contract to result in liability for damage).

The Act gives the consumer the choice to exercise the right to treat the contract at an end, there isn't a right for the trader to do so  

https://www.legislation.gov.uk/ukpga/2015/15/section/28

(8)If the consumer specifies a period under subsection (7) but the goods are not delivered within that period, then the consumer may treat the contract as at an end.

ArbitraryRandom said:

Basically, if the OP brought a small claims case for damages, the seller would argue they had the item available at the contracted price, dispatched the item, and the item was lost through no fault of their own - they were unable to replace the item (like for like) as there was no remaining stock of that model, so the CRA requires them to refund, ending that part of the contract... 

That's not strictly correct, I understand you mean they didn't do it on purpose but the trader's obligation is to deliver the goods (unless agreed otherwise) and risk remains with the trader until physical possession by the consumer (or another they name).

The obligation to deliver is an implied term so a situation where the trader has failed in their obligation to deliver the goods is in breach of the terms of the contract. 

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

RHemmings said:

Does not 'loss of bargain' apply in this case? I.e. if the OP has to pay more to get a like and similar item, then can't they sue Samsung for the price difference? 

'Loss of opportunity/bargain' is tort rather than statue law, so there's nothing easy to point to re 'rights' - and the issue is the consumer rights act gives the avenue for the seller to 'end' (aka terminate) the contract by providing a refund (meaning there has been no 'breach' of contract to result in liability for damage).

The Act gives the consumer the choice to exercise the right to treat the contract at an end, there isn't a right for the trader to do so  

https://www.legislation.gov.uk/ukpga/2015/15/section/28

(8)If the consumer specifies a period under subsection (7) but the goods are not delivered within that period, then the consumer may treat the contract as at an end.

ArbitraryRandom said:

Basically, if the OP brought a small claims case for damages, the seller would argue they had the item available at the contracted price, dispatched the item, and the item was lost through no fault of their own - they were unable to replace the item (like for like) as there was no remaining stock of that model, so the CRA requires them to refund, ending that part of the contract... 

That's not strictly correct, I understand you mean they didn't do it on purpose but the trader's obligation is to deliver the goods (unless agreed otherwise) and risk remains with the trader until physical possession by the consumer (or another they name).

The obligation to deliver is an implied term so a situation where the trader has failed in their obligation to deliver the goods is in breach of the terms of the contract. 

Agreed - but it would be for the OP to take it to small claims and argue for the loss/damage... and if the item is lost/a replacement is not available then the only remaining remedy in the act is a refund. 

Small claims is notoriously difficult to predict, but I can't help but think the judge would consider any such suit 'unreasonable' given the specifics. 

the_lunatic_is_in_my_head

ArbitraryRandom said:

Agreed - but it would be for the OP to take it to small claims and argue for the loss/damage... and if the item is lost/a replacement is not available then the only remaining remedy in the act is a refund. 

Small claims is notoriously difficult to predict, but I can't help but think the judge would consider any such suit 'unreasonable' given the specifics. 

The general principle is that the party suffering the breach should be in the same position that would have been had that breach not occurred, I understand if you buy a one off piece of art for example it's harder to quantify a loss, but OP doesn't have to seek the replacement washing machine from Samsung. 

Any place that sells it, whilst ensuring to get the best price to mitigate losses, should suffice and OP should then be due the difference. In fact Samsung should buy it from somewhere else to fulfil the OP's order but that's obviously not going to happen.

If the machine is OOS everywhere and discontinued then I guess that throws a spanner in the thinking. 

All this aside I don't understand why companies offer such bad service, they're a billion pound, global company selling their own product, even if they had offered OP 15-20% off another machine in a similar price range OP would have probably grumbled a bit and then accepted. 

I'm not sure I would suggest OP goes through the headache of small claims for this £150 (I don't think many people who come here get that far, either the company is presented with the legal position and gives in or the posters give up) but would hope the CEO office offers better customer service (legal position aside), failing that I'd send a letter before action as a bluff (citing damages due to breach of contract). 

Okell

As so often in these sorts of cases, I don't think the OP has made it entirely clear what the problem is.

Do they mean (a) that they've also lost the 25% discount on the two items that Samsung were able to deliver, or do they mean (b) that they've only received a discounted refund on the w/m that Samsung couldn't deliver? And which the OP didn't really want and only bought to get the "buy 3 items and get a 25% discount" deal.

If the former (ie they've got a 25% on the two items they really wanted to buy) then I think the OP has done OK. 

But if the latter (ie the OP has also lost the 25% discount on the fridge and the vacuum because Samsung are in breach of contract by not delivering the w/m) then I think the OP has a legitimate argument for loss of bargain.

the_lunatic_is_in_my_head

Okell said:

As so often in these sorts of cases, I don't think the OP has made it entirely clear what the problem is.

Do they mean (a) that they've also lost the 25% discount on the two items that Samsung were able to deliver, or do they mean (b) that they've only received a discounted refund on the w/m that Samsung couldn't deliver? And which the OP didn't really want and only bought to get the "buy 3 items and get a 25% discount" deal.

If the former (ie they've got a 25% on the two items they really wanted to buy) then I think the OP has done OK. 

But if the latter (ie the OP has also lost the 25% discount on the fridge and the vacuum because Samsung are in breach of contract by not delivering the w/m) then I think the OP has a legitimate argument for loss of bargain.

I think OP wanted all 3 and has ended up with the Fridge Freezer and Vacuum cleaner with a 25% discount, but is now (understandably) unhappy they have to buy another washing machine that won't come with a 25% discount.