£900 paid for stove for van has broken after a few weeks. Seller telling me to claim insurance

sheramber

Okell said:

Has the OP actually had two refunds on this already?

Original price was £1125 on which the OP accepted a £75 refund because of the moulding fault - or whatever it was.

So did the OP go back for a second refund of £150, giving a total of £225 refund already?

Also I'm still not clear on what the current fault is that the OP is complaining about...

[Edit:  Does it come down to this?  "... The issue is that it is a ceramic cook top and I was driving for around 7 hours and by the end of the day when I got home I saw what looked like a glass shard. I opened up the hood and sure enough it had cracked in several places. There were some uneven roads and potholes but that was all on standard uk roads. As such this is normal use and thus the item has failed and is not fit for purpose..."

I can see the trader arguing that it's accidental damage or misuse...]

OP says he paid £900 due to defect.

Seller could argue the stove is not securely installed , causing it to break when driving over potholes.

the_lunatic_is_in_my_head

Okell said:

I can see the trader arguing that it's accidental damage or misuse...]

Isn’t this where burden of proof comes in?

I could say of course my TV wasn’t damaged by me, it sits on a table and I watch it for 2 hours a day but if it was after 6 months standard advice is get a report.

So where burden of proof is on the trader isn’t it the same, i.e they need an independent “report” rather than just saying so? 

ArbitraryRandom

the_lunatic_is_in_my_head said:

Okell said:

I can see the trader arguing that it's accidental damage or misuse...]

Isn’t this where burden of proof comes in?

I could say of course my TV wasn’t damaged by me, it sits on a table and I watch it for 2 hours a day but if it was after 6 months standard advice is get a report.

So where burden of proof is on the trader isn’t it the same, i.e they need an independent “report” rather than just saying so? 

My thoughts are:

- If the seller is refusing to engage (which they seem to be), then they are refusing to accept responsibility - they cannot be forced to do so (short of a court order). 
- Try the charge back, which we expect will fail, but ONLY if the seller engages to dispute the claim*, which may indicate to the OP the grounds they're using to refuse (which is useful information);
- Then it would be LBA and the court... 

At this point I would say the OP should have an independent report, because the timescales for responding in court aren't exactly generous AND if the case is found in their favour, the court can order the seller to refund the costs. 

But that's on the assumption that a report will cost maybe £40-60, which seems a reasonable risk to take before spending £70 filing a claim. 


*I know born suggested otherwise, but for the purposes of this post I'm assuming this is an inherent fault, not related to the initial fault. 

Okell

re: burden of proof etc

I take your point, but where does the CRA mention anything about anybody producing an independent report for anything?  (I know it's what we all say on here, and I know an independent report can always strengthen a case, but the legislation doesn't require one, does it?)

What concerns me in this case is I don't think the OP has a particularly strong argument after going back twice to negotiate the price downwards, and if the trader simply says "Look at it.  That could only happen if it were subjected to stress outside the scope of normal use" that a court might accept that simple statement as establishing that it conformed to contract when the OP took delivery of it.

But I don't know...

(Although I do think the OP made an unnecessary rod for their own back by getting two price reductions in a row rather than rejecting it in the first place.  I can't help thinking that the wrong sort of judge might think he was taking the proverbial...)

RefluentBeans

the_lunatic_is_in_my_head said:

Okell said:

I can see the trader arguing that it's accidental damage or misuse...]

Isn’t this where burden of proof comes in?

I could say of course my TV wasn’t damaged by me, it sits on a table and I watch it for 2 hours a day but if it was after 6 months standard advice is get a report.

So where burden of proof is on the trader isn’t it the same, i.e they need an independent “report” rather than just saying so? 

Guess the argument that is currently being faced is that if you bought a TV, and noticed a crack in the bezel of the TV but accepted a reduced price because of this fault, could you then complain that the quality of the picture is diminished. Arguably, that is the same fault. It really doesn’t seem clear if you choose to accept the product at a reduced price knowing the fault is present what the outcome is on your rights; and it’s not something that I think is clear cut (as it seems a niche situation). Plus we are only hearing one side of the story. 

Additionally, you taking a TV out of the box and plopping it on a stand/unit/wall mount is significantly easier (I’d imagine) than installing a cooker. And your house (I hope) doesn’t move as much as a motor vehicle. 

In a comment upstream - I said the OP needs to clarify why the company is rejecting the claim. If it is an issue with fitting, it can fall into more conventional advice. Arguments on following the instructions/not fit for purpose etc are all valid. If it’s an issue with it’s the same fault manifesting itself in a previously unseen issue - there is no clear arguments - as both arguments have merit. And it would have to come to a judge (or at least an independent party) to review both sides arguments and evident to come to a conclusion. And I don’t think it’s something that could easily be extrapolated - as it seems it is a case by case issue.  

Okell

LightFlare said:

Okell said:

Has the OP actually had two refunds on this already?

Original price was £1125 on which the OP accepted a £75 refund because of the moulding fault - or whatever it was.

So did the OP go back for a second refund of £150, giving a total of £225 refund already?

Also I'm still not clear on what the current fault is that the OP is complaining about...

The ceramic cook top that apparently broke after 7 hours or driving around on uneven roads with potholes (in the OP)

I realised after I posted.  Thanks.  I was editing my post as you were posting

ArbitraryRandom

Okell said:

I take your point, but where does the CRA mention anything about anybody producing an independent report for anything?  

It says during the first 6 months the assumption is the defect was present at point of sale (paraphrasing) -meaning after the initial period that assumption is not made... so when there's a claim it's for the seller to prove it wasn't inherent in the first 6 and the customer thereafter to prove it was (most easily via an independent report)

But in this case the issue isn't if the defect was present, but if the defect was already brought to the OP's attention and they were happy to accept a partial refund as remedy (vs there's a completely different defect)

GervisLooper

ArbitraryRandom said:

My thoughts are:

- If the seller is refusing to engage (which they seem to be), then they are refusing to accept responsibility - they cannot be forced to do so (short of a court order).

Isn't it going to look bad for them though if they are seen to be in clear breach of the consumer rights act? If there are no consequences for breaching it then what is the point of it? Aren't they obligated to engage and try and resolve the issue and maybe only after an attempt at resolution then it could be ok to not engage any more but no attempt has been made on their part for this issue?

If I were successful with the chargeback how would the return of the item work? They are ignoring me so I guess some sort of contact would have to be engaged again to send it back. Also how would postage work? They would buy it and send me a postage label to print and send it?

RefluentBeans

GervisLooper said:

ArbitraryRandom said:

My thoughts are:

- If the seller is refusing to engage (which they seem to be), then they are refusing to accept responsibility - they cannot be forced to do so (short of a court order).

Isn't it going to look bad for them though if they are seen to be in clear breach of the consumer rights act? If there are no consequences for breaching it then what is the point of it? Aren't they obligated to engage and try and resolve the issue and maybe only after an attempt at resolution then it could be ok to not engage any more but no attempt has been made on their part for this issue?

If I were successful with the chargeback how would the return of the item work? They are ignoring me so I guess some sort of contact would have to be engaged again to send it back. Also how would postage work? They would buy it and send me a postage label to print and send it?

The issue is it’s not a clear break of consumer rights act. You haven’t actually said why they’re refusing the return. Was it because they consider this the same fault? Was it because of (what they consider) poor fitting? 

By accepting the product was faulty and getting a discount on it, it makes the future claims of any further issues harder to claim. Your rights can’t be waved away; but it does impact your rights. And that case isn’t spelled out in the writing of the law, and thus needs someone who’s impartial to look at both sides, and make a judgement - that person is a judge. 

Ultimately if you feel your rights are being violated then you have the right to go to court and put a case in front of the judge. But the retailer also has a right to defend themselves, and the judge will look at the balance of probabilities. 

the_lunatic_is_in_my_head

Okell said:

re: burden of proof etc

I take your point, but where does the CRA mention anything about anybody producing an independent report for anything?  (I know it's what we all say on here, and I know an independent report can always strengthen a case, but the legislation doesn't require one, does it?)

The legislation doesn't require one but throughout the CRA the language is very factual talking specifically about when the goods do not conform, in terms of reverse burden of proof it merely says that goods are taken not to conform unless demonstrated otherwise*. 

I can only assume whatever the criteria for determining proof is in a legal sense is a given and thus not mentioned so we are talking at what a court wants to see as "proof" rather than anything the CRA says in that sense.

*The regs also mention application is incompatible with the nature, I think this means something like a lawn mower not being able to cut brambles well doesn't mean the goods do not conform as, in the absence of anything stated otherwise, the clue is in the name.

Okell said:

What concerns me in this case is I don't think the OP has a particularly strong argument after going back twice to negotiate the price downwards, and if the trader simply says "Look at it.  That could only happen if it were subjected to stress outside the scope of normal use" that a court might accept that simple statement as establishing that it conformed to contract when the OP took delivery of it.

I think that depends on whether or not a price reduction is a final remedy which I've never seen answered and how a court would view the specifics which is very subjective. 

There could even be an argument the trader ought to have known the defects for which a refund has been granted would cause further issues and not stating such is a misleading omission leading OP to make a transaction decision they otherwise would not have (i.e OP for a part refund rather than final right to reject).  

I guess this is one of those instances where the party which articulates themselves most coherently has a greater chance of winning.