Faulty iPad, just outside the warranty (please help)

Okell

Aylesbury_Duck said:

RefluentBeans said:

OP I think your best bet is to keep on at Argos. As has been said on here, Apple will never admit to poor manufacturing; and Apple the manufacturer and Apple the retail store should be considered largely separate entities; as in the Retail stores have little visual on what happens in production lines and so can’t speak to those sort of issues - a whole unit replacement isn’t going to cut mustard when they haven’t even identified what fault there is, just that it is faulty. 

As for S75 - I think it would be your father who would benefit from this, and I don’t think the credit card company has to extend the protections to you. What would normally be the thing to do is get your father to act on your behalf and just omit that you’re the user of the device (in fact I don’t think you lose S75 protection even if the product is essentially gifted, but the person who paid for the item is the beneficiary of those protections - not the gift recipient - but happy to be corrected). 

As for CRA (or as it has been erroneously stated on here as SoGA) I don’t know what is classed as a consumer for the purpose of the act. It could well be that you are the consumer in this case, but I’ll leave it to people who have read the laws to answer whether there is a distinction between a purchaser (ie the person who paid). However, I’m also sure that claims under the CRA don’t stipulate they have to be paid to the same card they were bought on, and just makes reference to a refund and not specific mechanisms for that refund. To me, I took this to mean a ‘cash’ refund - for example the retailer can’t dictate the terms of the refund or they could just offer a credit note and say they’ve done their job. Equally, if you no longer have said bank account then it shouldn’t be on your to chase the bank account and the retailer, the retailer should just give you a refund to your chosen payment method. But I am happy to be corrected - I’m sure @t@the_lunatic_is_in_my_head will confirm or refine the details, as they have a more in depth knowledge of specific legalisation than I do.

OP's father has subsequently died, so the S75 option is redundant, anyway.

Is the fact that the OP's father has subsequently died relevant?  Presumably any legitimate s75 claim that the father might have had can be enforced by his estate.

What will quite likely put a spanner in the works of any s75 claim is that the OP used his father's credit card to fund the purchase.

Even if the OP's father had authorised the use of the card, the card provider can argue that such a use was in breach of the T&Cs (eg the father had told the OP his PIN) and I suspect that that would be sufficient to invalidate any s75 claim.

PS  -  I don't think there's a fraud here in the OP's use of the card.  I think it's just a breach of the card provider's T&Cs.

Okell

RefluentBeans said:

...As for S75 - I think it would be your father who would benefit from this, and I don’t think the credit card company has to extend the protections to you. What would normally be the thing to do is get your father to act on your behalf and just omit that you’re the user of the device (in fact I don’t think you lose S75 protection even if the product is essentially gifted, but the person who paid for the item is the beneficiary of those protections - not the gift recipient - but happy to be corrected)...

This is all a grey area.

But if you argue by analogy from those cases where a secondary card holder has made the purchase, it would seem that the primary cardholder needs to have received some "benefit" from the transaction (eg a gift for the main cardholder bought by the secondary card holder) to get s75 protection.

In this case the OP used his father's credit card (apparently with his father's agreement) to buy a piece of kit for the OP's benefit.  The OP has not explained how this benefited his father, so I suspect any s75 claim would fail.

I'd also suggest that as - as in this case - the OP is not even a secondary cardholder, then any claim under the Consumer Credit Act would be even more likely to be rejected.

[Edit :  that's ignoring any quaestion as to whether a s75 claim woud be invalidated in any case by the father's breach of T&Cs by letting OP use it]

RefluentBeans

Okell said:

RefluentBeans said:

...As for S75 - I think it would be your father who would benefit from this, and I don’t think the credit card company has to extend the protections to you. What would normally be the thing to do is get your father to act on your behalf and just omit that you’re the user of the device (in fact I don’t think you lose S75 protection even if the product is essentially gifted, but the person who paid for the item is the beneficiary of those protections - not the gift recipient - but happy to be corrected)...

This is all a grey area.

But if you argue by analogy from those cases where a secondary card holder has made the purchase, it would seem that the primary cardholder needs to have received some "benefit" from the transaction (eg a gift for the main cardholder bought by the secondary card holder) to get s75 protection.

In this case the OP used his father's credit card (apparently with his father's agreement) to buy a piece of kit for the OP's benefit.  The OP has not explained how this benefited his father, so I suspect any s75 claim would fail.

I'd also suggest that as - as in this case - the OP is not even a secondary cardholder, then any claim under the Consumer Credit Act would be even more likely to be rejected.

Sorry - yes I agree. I should’ve been clearer. My point was more in the Christmas present for someone sort of thing. The argument is academic I guess as, in this case, the primary cardholder is sadly deceased; so a S75 claim would likely be rejected (but I guess there’s no harm in trying?). 

I guess my point was that if I bought you (Okell) a present on my card, and you then had a fault with it; would I still be able to pursue a S75 claim? 

Sorry didn’t mean to derail the conversation! 

Okell

RefluentBeans said:

Okell said:

RefluentBeans said:

...As for S75 - I think it would be your father who would benefit from this, and I don’t think the credit card company has to extend the protections to you. What would normally be the thing to do is get your father to act on your behalf and just omit that you’re the user of the device (in fact I don’t think you lose S75 protection even if the product is essentially gifted, but the person who paid for the item is the beneficiary of those protections - not the gift recipient - but happy to be corrected)...

This is all a grey area.

But if you argue by analogy from those cases where a secondary card holder has made the purchase, it would seem that the primary cardholder needs to have received some "benefit" from the transaction (eg a gift for the main cardholder bought by the secondary card holder) to get s75 protection.

In this case the OP used his father's credit card (apparently with his father's agreement) to buy a piece of kit for the OP's benefit.  The OP has not explained how this benefited his father, so I suspect any s75 claim would fail.

I'd also suggest that as - as in this case - the OP is not even a secondary cardholder, then any claim under the Consumer Credit Act would be even more likely to be rejected.

... I guess my point was that if I bought you (Okell) a present on my card, and you then had a fault with it; would I still be able to pursue a S75 claim?...

That (or variants on it) is the question.

I think if you buy a gift for me on your card, and the gift turns out to be faulty, then you have a remedy under both the CRA and s75 CCA.  But I - as the recipient of the gift - have no legal remedy at all, with or without your original receipt.

Where it gets more unclear regarding s75 is where the purchase is made by a "secondary" card holder.  In that case my understanding - which may well be wrong - is that there is no s75 protection unless the purchase is in some way a benefit to the "primary" cardholder.  eg a gift bought by the secondary cardholder for the primary cardholder: see Section 75 refunds: credit card protection’ - MSE (moneysavingexpert.com)

But if the secondary cardholder's purchase is solely for their own benefit, then neither they nor the primary cardholder has a s75 remedy.

It seems to me that in this case the OP probably has no s75 claim because (a) they aren't even a secondary cardholder, (b) their father received no benefit from the purchase, and (c) the OP's father was probably in breach of the T&Cs regarding the use of the card.  But I'm not 100% sure of any of that.

born_again

Okell said:

Is the fact that the OP's father has subsequently died relevant?  Presumably any legitimate s75 claim that the father might have had can be enforced by his estate.

What will quite likely put a spanner in the works of any s75 claim is that the OP used his father's credit card to fund the purchase.

Even if the OP's father had authorised the use of the card, the card provider can argue that such a use was in breach of the T&Cs (eg the father had told the OP his PIN) and I suspect that that would be sufficient to invalidate any s75 claim.

PS  -  I don't think there's a fraud here in the OP's use of the card.  I think it's just a breach of the card provider's T&Cs.

Very, like many things claims end when the person passes away.

Doinfine

Huge "Thank You"  to everyone that has replied.  Sincerely - its appreciated.

I am content it is not fraud.  The Fraud Act 2006 is the relevant legislation, its S2 which is the only possible offence but for fraud there has to be dishonesty (so tending a card without the express permission would be - with permission is not).  I have paid for fuel using my wife's card as she was literally sat in the passenger seat watching me do so - nobody would (I hope) think that is fraud.  My son has been into shops with my money as I literally watch him buy something (I get the change - it is MSE after all!) - again - not fraud.

My question really is - do I instruct the independent expert and rethinking this - I might have to.  As its me who brings the claim its me who has the burden of proof - i.e. its me who has to show that (probably) the item was faulty and I fear without it a Court say "I cannot be satisfied it was".

Anyone know what they might charge or even who might do this report?

Thank You   - everyone has been so kind taking time to reply.

RefluentBeans

Doinfine said:

Huge "Thank You"  to everyone that has replied.  Sincerely - its appreciated.

I am content it is not fraud.  The Fraud Act 2006 is the relevant legislation, its S2 which is the only possible offence but for fraud there has to be dishonesty (so tending a card without the express permission would be - with permission is not).  I have paid for fuel using my wife's card as she was literally sat in the passenger seat watching me do so - nobody would (I hope) think that is fraud.  My son has been into shops with my money as I literally watch him buy something (I get the change - it is MSE after all!) - again - not fraud.

My question really is - do I instruct the independent expert and rethinking this - I might have to.  As its me who brings the claim its me who has the burden of proof - i.e. its me who has to show that (probably) the item was faulty and I fear without it a Court say "I cannot be satisfied it was".

Anyone know what they might charge or even who might do this report?

Thank You   - everyone has been so kind taking time to reply.

I agree - not fraud.

If it gets to court (realistically, more likely to get settled out of court by their legal team) - you just have to prove on the balance of probabilities, not beyond a reasonable doubt. So for example, if the motherboard is dead, the report should say something along the lines of ‘the motherboard has failed prematurely. Specifically the <insert component> has failed. Based on my experience in the field, I would expect these components to last <insert time>. There is no sign of misuse, water damage, or tampering and thus I believe this to have failed earlier than expected’. 

As for cost it really depends. An independent repair shop may be able to do it for less than £100 but a component repair shop may charge more, but will give a more detailed report. Generally, if the report supports what you say, you can recover the cost of the report. 

It’s also worth noting that the retailer can reduce the amount of money for a refund (if that is what you are seeking) for the use of the product; and the retailer can offer you a repair or replacement at their discretion. If the product fails again, you can exercise your final right to reject, but you’re not at that point yet.  

Bradden

RefluentBeans said:

It’s also worth noting that the retailer can reduce the amount of money for a refund (if that is what you are seeking) for the use of the product; and the retailer can offer you a repair or replacement at their discretion. If the product fails again, you can exercise your final right to reject, but you’re not at that point yet.  

Could the retailer not argue that there are no consumer rights as the OP did not purchase the item but was gifted it?

Okell

born_again said:

Okell said:

Is the fact that the OP's father has subsequently died relevant?  Presumably any legitimate s75 claim that the father might have had can be enforced by his estate.

What will quite likely put a spanner in the works of any s75 claim is that the OP used his father's credit card to fund the purchase.

Even if the OP's father had authorised the use of the card, the card provider can argue that such a use was in breach of the T&Cs (eg the father had told the OP his PIN) and I suspect that that would be sufficient to invalidate any s75 claim.

PS  -  I don't think there's a fraud here in the OP's use of the card.  I think it's just a breach of the card provider's T&Cs.

Very, like many things claims end when the person passes away.

If I borrowed £10k from a relative or friend, supported by a legally enforceable agreement between us that I would repay the loan on specific terms, are you saying that if the lender died before I'd repaid the full amount, and I then ceased repayments, that the lender's personal representatives could not enforce the terms of the agreement against me and couldn't issue a claim on behalf of the deceased's estate?

That doesn't sound right... (?)

eskbanker

Bradden said:

RefluentBeans said:

It’s also worth noting that the retailer can reduce the amount of money for a refund (if that is what you are seeking) for the use of the product; and the retailer can offer you a repair or replacement at their discretion. If the product fails again, you can exercise your final right to reject, but you’re not at that point yet.  

Could the retailer not argue that there are no consumer rights as the OP did not purchase the item but was gifted it?

Even if the retailer was aware that it wasn't the purchaser's own credit card used, I asked earlier in the thread if anyone knows of any provision within CRA that would allow them to assert that the actual purchaser (OP) has no consumer rights because the purchase was funded with someone else's credit card, but nobody has supported such an argument?