Can a retailers Purchasing T&C's supersede UK Consumer Law?

Okell

Alderbank said:

CurlyT said:

I thought I was being reasonable, I am not pushing for a refund because I know I'm outside of the 30 day return, but they seem to be so adamant that it is making me doubt my understanding of this law?  We spent over £500 with this company and we are only asking for a refund on one of the items that were damaged.

It's not clear to me, are you asking for a refund or not? You say you are asking for one but not pushing for one...

CurlyT said:

Sorry, no we aren't pushing for a refund, I meant to put replacement...

Sorry - still not clear to me which one you aren't pushing for.

What is it that you do want - a replacement or a refund?  

You aren't entitled to a refund yet.  What you are entitled to is a replacement or a repair.  You are only entitled to a refund if the replacement or repair fails.

As has already been pointed out, a repair probably isn't possible so you are entitled to a replacement - and that's all the seller is obliged to offer you at the moment.

But there's nothing to stop you asking for a refund if that's what you want - the seller may agree...

CurlyT

I didn't want to name and shame but it is Homebase.  I purchased for home use, to be fitted by a tradesman that I have paid to fit it.

CurlyT

To clarify, the damage was not noted until outside of the 30 day refund period, so we offered Homebase the opportunity to replace or repair.  They came back to us and refused to do anything with the reason being, their sub-supplier has a 14 day period in to which fault notifications should be reported. As it fell outside that time period there was nothing that Homebase could do and closed the case.  

Okell

So you bought it personally?  The trader you engaged to fit it didn't buy it, and you didn't buy it on his trade account?  (I ask because that sometimes happens...)

So long as you bought it personally go back to Homebase and quote s19(14) of the legislation I linked to in my earlier comment.  Because you identified the fault within 6 months of purchase, the onus is on Homebase to prove that it wasn't faulty when you bought it.

They might try to argue that because you didn't notify them within 30 days that the damage must have happened after you took delivery of it, but such an argument does not - in my view - prove that the goods were undamaged when you took delivery.  Do you have a convincing reason why it took over 30 days to identify the damage?  eg it took the fitter that long to get around to it.

Go back and argue the case with Homebase - stick with your guns and the law I've linked to.

If they won't relent you may be able to raise a chargeback or a s75 claim with your bank if bought on a debit card or credit card.

If you paid some other way you'd have to consider suing them

[Edit:  Additionally, any time limits imposed upon Home base by their suppliers are irrelevant to you as a consumer.  That's a business matter between HB and their suppliers - nothing to do with you.  s31 of the legislation I linked to in my earlier thread makes it clear that sellers cannot restrict or exclude their liablity under the legislation]

Bradden

Ergates said:

Bradden said:

I think the difficulty will be convincing the supplier that the  the damage was not done post delivery.

That's the shop's problem, not the OP.  If a fault is reported in the first 6 months then it is on the retailer to demonstrate that it is *not* an inherent fault.

I do understand that it's the retailers issue.

Assuming the consumer signed a delivery note which said something like "confirmation of goods delivered in perfect condition and any damaged items to be reported within 48 hours from delivery" (I'm not suggesting the OP has signed anything)  could the retailer not use this to demonstrate it was not delivered damaged? 

born_again

Ergates said:

The short answer to your title question is:  No.  Everything you have stated is correct.  Yes you do have a case.

It sounds like the sub-supplier have a B2B contract with the shop, and as such can apply whatever contract terms they like.   However, this is the shop's problem not yours. 
*You* have a contract with the shop (and you are a consumer), not with the supplier, so the suppliers T&Cs don't apply to you (and wouldn't be legal anyway). 

The shop just has to lump it and take the loss.  They can either supply you the goods you paid for, or refund you.  (In theory they can also repair, but that can't really be done to porcelain) 

You can try, once more, to clarify what your rights are with them - you might be lucky and get hold of someone who actually knows how to do their job properly.  

That all depends.
If it is set up like Amazon & the MarketPlace. Then you are dealing with who you bought it from, not Amazon (who have their own internal process for dealing, if not resolved in some cases) But they do not have to.

So while I get what you are saying, this may not be the case 🤷‍♀️Unless OP says who the site they bought from is & T/C can be viewed.

Grumpy_chap

Ergates said:

That's the shop's problem, not the OP.  If a fault is reported in the first 6 months then it is on the retailer to demonstrate that it is *not* an inherent fault.

Are there any restrictions on this in terms of items being damaged by the consumer?

In this case, there is a ceramic toilet bowl which was, apparently, not inspected for over a month from delivery and, when inspected, then found to have a hairline crack.  Bathroom ceramics can become quite easily damaged from comparatively light impact.

As a comparator, we ordered a mirror for our hallway.  It was delivered sooner than expected so decorating was not finished and were not ready to hang straight away.  Regardless, we opened to inspect for no damage on the day of receipt.  It just seemed the obvious thing to do.

In this case, can the OP even verify that the toilet bowl was definitely damaged when first unpacked, or could it be possible that the installer damaged the items during handling at some point and then tried to claim the retailer's fault?  How closely was the OP monitoring the installer?

It is just that this issue around accidental damage cannot reasonably be put at the door of the retailer.  A request to report any damage on delivery within a relatively short time frame does not seem unreasonable.  It would be different in the case of an inherent fault that could not (or might not) be noticed immediately.

Okell

Bradden said:

Ergates said:

Bradden said:

I think the difficulty will be convincing the supplier that the  the damage was not done post delivery.

That's the shop's problem, not the OP.  If a fault is reported in the first 6 months then it is on the retailer to demonstrate that it is *not* an inherent fault.

I do understand that it's the retailers issue.

Assuming the consumer signed a delivery note which said something like "confirmation of goods delivered in perfect condition and any damaged items to be reported within 48 hours from delivery" (I'm not suggesting the OP has signed anything)  could the retailer not use this to demonstrate it was not delivered damaged? 

I don't think so on its own... but I'm not sure...

s31 of the Act says that a seller can't limit or exclude their liability under the legislation.

The only purpose I can see of the such a clause as you describe is to attempt to limit the seller's liability under s19(14) which creates a legal presumption that any "faults" that manifest themselves within 6 months of delivery were present at purchase - unless the seller can prove otherwise.

So I don't think that such a clause as you describe necessarily shifts the burden of proof under s19(14) from the seller to the consumer, but the seller might be able to use it to support a rebuttal argument that the goods were not damaged on delivery.  

But I don't think such an argument would work as the clause in question is clearly designed to get round the spirit of the legislation - which, depending on how you look at it, is either purposefully designed to give the wily consumer an unfair advantage over honest traders, or is simply levelling the playing field between consumer and trader.

Ultimately it would depend on who a judge believed, bearing in mind that the burden of proof would be on the trader to show the goods were not damaged from the outset.  And to do that the judge would have to conclude that the consumer must be lying.  I think a judge would require very strong evidence of that...

Grumpy_chap

Okell said:

Bradden said:

Ergates said:

Bradden said:

I think the difficulty will be convincing the supplier that the  the damage was not done post delivery.

That's the shop's problem, not the OP.  If a fault is reported in the first 6 months then it is on the retailer to demonstrate that it is *not* an inherent fault.

I do understand that it's the retailers issue.

Assuming the consumer signed a delivery note which said something like "confirmation of goods delivered in perfect condition and any damaged items to be reported within 48 hours from delivery" (I'm not suggesting the OP has signed anything)  could the retailer not use this to demonstrate it was not delivered damaged? 

I don't think so on its own... but I'm not sure...

s31 of the Act says that a seller can't limit or exclude their liability under the legislation.

The only purpose I can see of the such a clause as you describe is to attempt to limit the seller's liability under s19(14) which creates a legal presumption that any "faults" that manifest themselves within 6 months of delivery were present at purchase - unless the seller can prove otherwise.

So I don't think that such a clause as you describe necessarily shifts the burden of proof under s19(14) from the seller to the consumer, but the seller might be able to use it to support a rebuttal argument that the goods were not damaged on delivery.  

But I don't think such an argument would work as the clause in question is clearly designed to get round the spirit of the legislation - which, depending on how you look at it, is either purposefully designed to give the wily consumer an unfair advantage over honest traders, or is simply levelling the playing field between consumer and trader...

This kind of ties in with my note just above.

What is the context of a "received undamaged" signature on a delivery note, or a request / requirement to report any damage within, say, 48 hours of delivery?

Is that limiting the seller's liability for faults within 6 months?

For context, I will use an example:
I buy a TV online and it is delivered to my home.
Any signature of "received undamaged" can only reasonably relate to "the box looks OK" - delivery courier personnel do not wait around while the item is unpacked and inspected.
It is probably reasonable to suggest that I would unpack the TV within a day of receipt - if the screen is smashed on receipt there is no reason why I cannot report that within the quick timeframe.
If I take 3 months to report a smashed screen on the TV, the supplier might reasonable suggest that was accidental damage after delivery, not prior to delivery.
The sort of fault that I might not identify in a short time would be something along the lines of the TV overheating after prolonged use - let's say 3 hours - and switching off.
I probably would not see that in the initial set up, because I switch the TV on and get everything done in under the three hours.
I quite probably would not see that in the first few uses of the TV, because 3 hours is quite a long time to be actually watching the TV.  Maybe after a couple of weeks I decide to binge watch some box set so experience the issue for the first time.
My first reaction might be to assume it is meant to do that - some inactivity timer switching off, possibly even something that can be set vie the menu.  
I might spend some time looking through the manual to resolve.
It may take a few more experiences to realise it is actually a fault which I report to the supplier.

As a consumer, I want suppliers to be responsible for genuine faults (even if they are not verified immediately) and genuine damage on receipt.  
As a consumer, I probably do not want the supplier to be responsible for any accidental damage that occurs in the first 6 months as this simply increases the cost for everyone.

Okell

Grumpy_chap said:

Okell said:

Bradden said:

Ergates said:

Bradden said:

I think the difficulty will be convincing the supplier that the  the damage was not done post delivery.

That's the shop's problem, not the OP.  If a fault is reported in the first 6 months then it is on the retailer to demonstrate that it is *not* an inherent fault.

I do understand that it's the retailers issue.

Assuming the consumer signed a delivery note which said something like "confirmation of goods delivered in perfect condition and any damaged items to be reported within 48 hours from delivery" (I'm not suggesting the OP has signed anything)  could the retailer not use this to demonstrate it was not delivered damaged? 

I don't think so on its own... but I'm not sure...

s31 of the Act says that a seller can't limit or exclude their liability under the legislation.

The only purpose I can see of the such a clause as you describe is to attempt to limit the seller's liability under s19(14) which creates a legal presumption that any "faults" that manifest themselves within 6 months of delivery were present at purchase - unless the seller can prove otherwise.

So I don't think that such a clause as you describe necessarily shifts the burden of proof under s19(14) from the seller to the consumer, but the seller might be able to use it to support a rebuttal argument that the goods were not damaged on delivery.  

But I don't think such an argument would work as the clause in question is clearly designed to get round the spirit of the legislation - which, depending on how you look at it, is either purposefully designed to give the wily consumer an unfair advantage over honest traders, or is simply levelling the playing field between consumer and trader...

This kind of ties in with my note just above.

What is the context of a "received undamaged" signature on a delivery note, or a request / requirement to report any damage within, say, 48 hours of delivery?

Is that limiting the seller's liability for faults within 6 months?...

I understand your point and I think it's a really good question.  I don't really know the answer.

What I do think is that the wording of s19(14) of the CRA is quite clear and means what it says:

"For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day."

To me that means that regardless of any disclaimer etc that the seller might argue that the consumer has signed or agreed to, the consumer doesn't need to prove that the "fault" - or whatever - was present at purchase, it's for the seller to prove that it wasn't present as per s19(15)(a).

I also think that anything that purports to put some sort of duty on the consumer to notify the seller of any "defects" etc within any time frame shorter than 6 months is unenforceable under s31 of the CRA.  While s31(1) doesn't specifically refer to s19 itself, s31(2) does refer to any term that would:

"(a) exclude or restrict a right or remedy in respect of a liability under a provision listed in subsection (1),

(b) make such a right or remedy or its enforcement subject to a restrictive or onerous condition..."

I think that any term that tries to tell the consumer that they must notify the seller of any "defects" within 48 hours/14 days/30 days/three months etc etc is an attempt to restrict the consumer's right not to have to prove anything under s19(14), and so is not binding on the consumer under s31(2).

So my view is that any such term - on its own - is not sufficient to negate the statutory presumption in s19(14) that any fault which manifests itself within 6 months of delivery was present at the date of delivery.

Of course the seller could try to argue as part of s19(15)(a) that "The consumer never told us as required by our T&Cs within 48 hours/14 days/30 days/3 months etc etc that there was a problem, so it couldn't have been present at delivery" but I don't think that that is a particularly strong argument and I also think it's clearly against the intentions of both s19(14) and s31(2).

It seems to me that the problem the seller has is that they can't possibly know what condition the goods were in when they were delivered to the consumer, so they are at an immediate disadvantage in trying to prove that they weren't faulty at delivery.  If the consumer is going to say "We only checked the goods 40 days after delivery and discovered the damage then.  We've taken good care of the goods since delivery and we certainly haven't caused the damage" then any court only find in favour of the seller if the court concludes that the consumer is being dishonest and is lying.

Unless the consumer is wearing a hooped jumper and pantomime eye-mask, I'm not certain a court would happily come to the conclusion that they must be lying.

Yes, you can argue that my view might encourage dishonest consumers, might increase costs for everybody and might be unreasonable to traders, but it seems to me that all of this current consumer protection legislation is purposefully intended to be advantageous to consumers over traders, is anything but a level playing field, and is unreasonable to traders.  

How else would you explain s19(14) in the first place?  The burden of proof is normally on the claimant, why reverse it here?  And why should consumers have an unrestricted right to cancel distance orders within 14 days?  It increases costs for everybody. etc etc

Having said all that, I could be completely wrong and mistaken about the whole thing!    

At the end of the day, if the OP can't get satisfaction from HB they'd need to consider what else they could do including possibly taking it to court.  A judge might agree with my opinion or they might think I'm wrong.

I'm not a lawyer and I don't really know the answer...

The OP needs to weigh up all the different views expressed here and decide how to progress.  I'd certainly go back to HB and start by arguing the s19(14) point and that HB can't impose some term on him saying that he has to notify damage within so many days because the term can't be binding on him under s31 of the CRA.

And see how it goes from there...