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

the_lunatic_is_in_my_head

I think it's one of those things where more information about how small claims cases are decided would help. As above the wording is clear and even uses the word "must" so the retailer should need something to tip balance of probability in their favour.

Toilets, or as someone mentioned TVs, are fragile things so damage in transit must be accepted as occurring, even if you return a TV after 3 months with a XBOX remote shaped hole in it, who is to say it wasn't sent out that way (i.e a previous customer return).

A thread on here the other day said don't rely on reports of others having the same issue and get the item looked at, common answer to anything over 6 months is independent inspection so by those standards you can only say the retailer needs the same before 6 months.

I know that is bordering on impossible with these situations but there are many items that could fail after 6 months where the consumer is going to have an extremely hard time finding someone who can inspect and determine the issue was there to begin with so is it swings and roundabouts? 

OP there is an email contact on CEO email for Homebase, CS are likely to stick to the script, if that email is monitored then higher up might have more leeway over policy. 

Failing that letter before action stating Passing of Risk:

https://www.legislation.gov.uk/ukpga/2015/15/section/29

and the 6 months discussed 

https://www.legislation.gov.uk/ukpga/2015/15/section/19

If that still doesn't work then as with all these things it's a personal decision as to whether to go to small claims or not, to the letter of the legislation you should win, how the case would go I've never seen anything on here or elsewhere to answer that with more certainty. 

Grumpy_chap

Okell said:

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.

Interestingly, there is a thread in the Motoring forum right now about a cracked windscreen on a brand new car within 6 weeks:
https://forums.moneysavingexpert.com/discussion/6560371/new-car-cracked-windscreen#latest
The comments suggest that the manufacturer covers under their warranty windscreen damage within 1 month / 600 mile of first registration.  That would be restricting rights in the first six months.

FWIW, If I had a brand new car and cracked screen after 6 weeks, I'd probably have simply given the issue to my insurer to resolve under the windscreen section of my motor policy and never even crossed my mind to pursue a claim against the manufacturer / supplying dealer.

As our resident lunatic indicated, there does not seem to be any access to clear data as to how these type of element is treated by the courts.

Alderbank

Grumpy_chap said:

Okell said:

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.

Interestingly, there is a thread in the Motoring forum right now about a cracked windscreen on a brand new car within 6 weeks:
https://forums.moneysavingexpert.com/discussion/6560371/new-car-cracked-windscreen#latest
The comments suggest that the manufacturer covers under their warranty windscreen damage within 1 month / 600 mile of first registration.  That would be restricting rights in the first six months.

Why would that be?

The link about a cracked windscreen on a new Skoda is exclusively about whether the manufacturer's warranty applies. No mention anywhere of consumer rights.

As often said on this forum, warranties are quite separate from and in addition to your consumer rights.

CurlyT

Once again, thank you all for taking the time to respond with some very detailed and informative responses.

Again to clarify, I am a consumer, I have bought, via Homebase.co.uk, various items for a bathroom/toilet renovation which I have employed a tradesman to fit.  I purchase all the items, He will fit them.  They have all been bought on a Mastercard credit card.

Update as to where we are now, we have emailed back to their customer services, quoting relevant passage of the consumer law.  I have told them, in a polite way, that I want a refund now as they have refused my offer for a replacement. 

With regards to timing, I was not made aware that the Homebase sub-supplier needed to know of any issues within 14 days, as my contract was with Homebase as they were the company taking my money.  Their website shows usual T&C's.

Unfortunately due to delays outside our control our tradesman was not available to fit said toilet at the original time, so we ended up opening the package later than we were expecting to, not that it should have mattered as we were not expecting there to be damage!

I have also opened a case with my credit card company.  Our plan will be to progress with this if we do not receive any positive responses from our latest email.  Thank you for the contact details for further up the food chain, this may prove very useful.

I will update this thread once I have more information.


 

Grumpy_chap

Alderbank said:

Grumpy_chap said:

Interestingly, there is a thread in the Motoring forum right now about a cracked windscreen on a brand new car within 6 weeks:
https://forums.moneysavingexpert.com/discussion/6560371/new-car-cracked-windscreen#latest
The comments suggest that the manufacturer covers under their warranty windscreen damage within 1 month / 600 mile of first registration.  That would be restricting rights in the first six months.

Why would that be?

The link about a cracked windscreen on a new Skoda is exclusively about whether the manufacturer's warranty applies. No mention anywhere of consumer rights.

As often said on this forum, warranties are quite separate from and in addition to your consumer rights.

Well, I took it that the manufacturer would seek to say any damage to the windscreen after 1 month / 600 miles was impact and not inherent fault present at purchase.  If that is so, then that would be restricting the 6 months.

We may find out how that pans out if the OP in the Motoring section provides updates.

FWIW - I think damage to a windscreen after a month is quite plausibly stone chip damage and pinning back to the manufacturer for that type of damage as inherent fault is a big ask.  The logic would be that any stone chip damage in the first 6 months has to be proven to be such by the manufacturer...

the_lunatic_is_in_my_head

It's an interesting one Grumpy_chap because as you say the retailer has to show otherwise within 6 months and if they simply refused stating the 1 month/600 miles then to the letter of the legislation the customer has the right to reject. 

I'd imagine they'd replace the window if a customer kicked up enough fuss, a lot of companies seem to know their obligations but put policy between them and the customer as they know most will just give up. 

Ergates

Grumpy_chap said:

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.

Yes/No

*If* the customer damages the product, *and* the retailer can, reasonably, demonstrate this then they can refuse a refund.

The important point is that the onus is on the retailer to "prove" this  (if it went to court, the level of proof is "balance of probability" for civil cases) .  The default assumption is that the damage occurred before delivery.   So the question isn't "How can the customer prove they didn't break the toilet" it's "How does the retailer prove that the customer did break the toilet".

Items getting damaged in warehouses and in transit (and by customers but you can't prove it) is part of the cost of doing business.

Okell

Grumpy_chap said:

Alderbank said:

Grumpy_chap said:

Interestingly, there is a thread in the Motoring forum right now about a cracked windscreen on a brand new car within 6 weeks:
https://forums.moneysavingexpert.com/discussion/6560371/new-car-cracked-windscreen#latest
The comments suggest that the manufacturer covers under their warranty windscreen damage within 1 month / 600 mile of first registration.  That would be restricting rights in the first six months.

Why would that be?

The link about a cracked windscreen on a new Skoda is exclusively about whether the manufacturer's warranty applies. No mention anywhere of consumer rights.

As often said on this forum, warranties are quite separate from and in addition to your consumer rights.

Well, I took it that the manufacturer would seek to say any damage to the windscreen after 1 month / 600 miles was impact and not inherent fault present at purchase.  If that is so, then that would be restricting the 6 months...

But isn't @Alderbank correct that the 1 month/600 miles retriction is a limitation only on the Skoda warranty?  It's got nothing to do with consumer rights under which the seller can't avoid their obligations.

According to the strict wording of the legislation any fault that manifests itself within 6 months of delivery "must" be deemed to have been present on the day of delivery.  If the consumer wants to make a claim against the seller on the basis that the windscreen was faulty at purchase or that there was some fault in the manufacuring process, then my understanding would be that unless the seller can "prove" the contrary, then the consumer would win the claim.  The consumer doesn't have to prove anything within 6 months.*

Presumably, if a motorist ever tried to claim for a cracked windscreen in these circumstances, the seller wouldn't allow the claim to succeed by default, but would seek to persuade a court that it was more likely that the crack was caused by a stone chip than by some manufacturing failure or defect.

It would then be up to the court to decide whether the seller had satisfied the reverse burden under s19(15) and whether the claim should therefore be rejected.

Grumpy_chap said:

Alderbank said:

Grumpy_chap said:

Interestingly, there is a thread in the Motoring forum right now about a cracked windscreen on a brand new car within 6 weeks:
https://forums.moneysavingexpert.com/discussion/6560371/new-car-cracked-windscreen#latest
The comments suggest that the manufacturer covers under their warranty windscreen damage within 1 month / 600 mile of first registration.  That would be restricting rights in the first six months.

Why would that be?

The link about a cracked windscreen on a new Skoda is exclusively about whether the manufacturer's warranty applies. No mention anywhere of consumer rights.

As often said on this forum, warranties are quite separate from and in addition to your consumer rights.

...  The logic would be that any stone chip damage in the first 6 months has to be proven to be such by the manufacturer...

Well, yes, if a motorist brought a claim - because that is literally what the law says.  But then it would be up to the defendant to persuade the court that it was obviously stone chip damage - and I suspect the court might be quite willing to accept that...

Personally I'd agree with you - rather than the hassle of some warranty claim or a court claim I'd just get it fixed for free under my insurance.  But that doesn't necessarily mean that there isn't a valid consumer rights claim in the first place.

Couple of other points.  First, I'm often quite surprised when I visit the motoring board that it seems sometimes to be a consumer rights free area.

Second, I'm not greatly into cars but I'm a bit surprised that Skoda's warranty covers windscreens at all, even if just for the first month or 600 miles.  I'm inclined to agree with you that windscreen damage is more likely to be from a stone chip rather than some manufacturing fault, so I'm surprised it has any warranty protection. 

Or is the unspoken  implication that windscreens are actually quite susceptible to manufacturing faults...?


* I say the consumer doesn't have to prove anything if the trader doesn't defend the claim.  If the trader does attempt to suggest that the damage was caused by a stone chip it would always be open to the consumer to challenge that assertion and to show that it couldn't be a stone chip.  (How I don't know, but that's what I think the law is)

Okell

the_lunatic_is_in_my_head said:

It's an interesting one Grumpy_chap because as you say the retailer has to show otherwise within 6 months and if they simply refused stating the 1 month/600 miles then to the letter of the legislation the customer has the right to reject. 

I'd imagine they'd replace the window if a customer kicked up enough fuss, a lot of companies seem to know their obligations but put policy between them and the customer as they know most will just give up. 

I think that's particularly true of car dealers and people are so used to it that they just accept it.  Hence my comment about the motoring board looking like a consumer rights free area...

Okell

@CurlyT

To get back to your problem you need to emphasise your statutory consumer rights to HB

s19(14) and (15) essentially say that any faults that materialise within 6 months of delivery must be presumed to have been present at delivery, unless the trader can prove otherwise.  As HB weren't present at delivery I'm not sure how they could prove that the item was not damaged when it was delivered.

It's of no relevance to you what their arrangements with their suppliers are, but presumably HB are seeking to rely on 5.4.12 in their T&Cs  Terms & Conditions | Homebase

I may be wrong but my view - as explained in my previous post - is that s31 of the Act says that you cannot be bound by that term because it is attempting to restrict your right under s19(14) not to have to prove anything in any claim you might make.

You would essentially make exactly the same arguments to your credit card company in support of any s75 claim or chargeback you asked for.

If you get nowhere with HB and the credit card company you'd have to decide whether this was worth pursuing as a court claim.  There's no guarantee you would win, and it might be that my opinion of what your consumer rights are is simply and completely wrong.  But if you can't get any other satisfaction from HB or the card company, I don't see what other route you can follow.

The sections of legislation I refer to above are here:  Consumer Rights Act 2015 (legislation.gov.uk)


(In the event that you actually end up having to argue the toss over 5.4.12 of their T&Cs, I'd just say that you left it until your tradesman could do the job as you're no plumber and you wouldn't necessarily know if all the parts were present or not, or whether or not it was damaged etc....

I had to call a plumber out some years ago to a leaking toilet cistern.  I couldn't find the leak - it was an invisible hairline crack - but he found it within a minute by running his fingernail over the cistern.  But for the fact there was a pool of water on the floor I'd never have realised it was cracked)