Free item faulty after large order Discount Dragon

Jsuk

Hi, my wife sometimes orders from Discount Dragon and they are usually very good with cheap offers and promotions. At Christmas they had an offer where if you made and order of at least £100 you would receive a free Armani Watch. My son really wanted a new watch so my wife made an order which was much larger than normal in order to receive the free watch. The order came along with the watch which was fully boxed and sealed. We wrapped it up and he opened it Christmas day and was very happy. The watch seemed to be working but when the hands go to a certain place they got stuck, as if they were bent. My wife contacted Discount Dragon and they said the item was a free promotion and they refused to do anything. What are our rights? Thanks. Jake.

RefluentBeans

It’s a tricky situation. 

My opinion, as a lay person and not a lawyer, is that the goods do form part of the contract and so must be compliant. But as the item wasn’t purchased per se, it doesn’t fall in the scope of the consumer rights act. 

So this means it falls to contract law, which basically says the goods must be as described (I can’t sell you an ‘all oak, comfy wooden chair perfect for playtime’ with pictures looking like it’s full size when it’s actually doll size…). The best thing to do would be to look if there were any terms and conditions associated with the promotion. This may have specific mechanisms for dealing with the issue. Failing that, the general rule is that you should be put into a position that you were in if the breach had not occurred. In this case, the unwinding of the entire contract. But it’ll be more complicated depending on what you’ve ordered. 

There’s also a loss of bargain statute - but I’m not super read up on that. That may apply here, but others may have an opinion on that. 

Personally, I would probably pursue it through their customer services asking to speak to managers etc; but if they offer you a ‘gesture of goodwill’ voucher or refund take that. My view is that freebies are nice to haves but wouldn’t make me change my shopping habit. But it’s up to you how far you want to take it.

the_lunatic_is_in_my_head

RefluentBeans said:

 But as the item wasn’t purchased per se, it doesn’t fall in the scope of the consumer rights act. 

Where a trader transfers ownership of goods without a consideration this is still covered under the CRA but is treated as a contract for the transfer of goods rather than supply of.

This leaves the right to repair/replace, right to reject doesn't assist as zero monetary value, or any other consideration, has been assigned to the goods (looking at the site I'm assuming OP doesn't still have possession all the other goods to reject the entire order). 

The implied terms of satisfactory quality, etc would still apply so main option is to seek damages for breach of contract, ideally cost of repair or if unrepairable for less than cost of replacement, damages for that cost of replacement. 

Odds of company agreeing are slim so will likely require a letter before action and if still no joy OP's choice as to whether they go via small claims. 

The company appears legitimate so I'm assuming the watch is authentic OP? 

RefluentBeans

the_lunatic_is_in_my_head said:

RefluentBeans said:

 But as the item wasn’t purchased per se, it doesn’t fall in the scope of the consumer rights act. 

Where a trader transfers ownership of goods without a consideration this is still covered under the CRA but is treated as a contract for the transfer of goods rather than supply of.

This leaves the right to repair/replace, right to reject doesn't assist as zero monetary value, or any other consideration, has been assigned to the goods (looking at the site I'm assuming OP doesn't still have possession all the other goods to reject the entire order). 

The implied terms of satisfactory quality, etc would still apply so main option is to seek damages for breach of contract, ideally cost of repair or if unrepairable for less than cost of replacement, damages for that cost of replacement. 

Odds of company agreeing are slim so will likely require a letter before action and if still no joy OP's choice as to whether they go via small claims. 

The company appears legitimate so I'm assuming the watch is authentic OP? 

Interesting - I guess that makes sense. I didn’t think the CRA was applicable as the retailer could choose to ‘refund’ which would be nil? 

What’s your opinion on the loss of bargain implications here? 

the_lunatic_is_in_my_head

RefluentBeans said:

Interesting - I guess that makes sense. I didn’t think the CRA was applicable as the retailer could choose to ‘refund’ which would be nil? 

The CRA notes in the section covering rights to enforce implied terms (sat quality, etc) that the chapter doesn't prevent the consumer from seeking other remedies, i.e the consumer doesn't have to rely solely on repair/replace, right to reject/price reduction.

This allows the benefit of relying on the implied terms but seeking damages (or other remedies) where repair, etc, etc is less favourable, so long as doing such doesn't permit recovery twice for the same loss.  

RefluentBeans said:

What’s your opinion on the loss of bargain implications here? 

I think that if beyond economical repair and claiming the replacement value this would be loss of a bargain but I'm not 100% on that.  

Okell

RefluentBeans said:

the_lunatic_is_in_my_head said:

RefluentBeans said:

 But as the item wasn’t purchased per se, it doesn’t fall in the scope of the consumer rights act. 

Where a trader transfers ownership of goods without a consideration this is still covered under the CRA but is treated as a contract for the transfer of goods rather than supply of.

This leaves the right to repair/replace, right to reject doesn't assist as zero monetary value, or any other consideration, has been assigned to the goods (looking at the site I'm assuming OP doesn't still have possession all the other goods to reject the entire order). 

The implied terms of satisfactory quality, etc would still apply so main option is to seek damages for breach of contract, ideally cost of repair or if unrepairable for less than cost of replacement, damages for that cost of replacement. 

Odds of company agreeing are slim so will likely require a letter before action and if still no joy OP's choice as to whether they go via small claims. 

The company appears legitimate so I'm assuming the watch is authentic OP? 

Interesting - I guess that makes sense. I didn’t think the CRA was applicable as the retailer could choose to ‘refund’ which would be nil?...

You will sometimes see it mistakenly said on this board that the trader has a choice whether to repair, replace or refund.  That is wrong.  

If the consumer asks for a repair, the trader can choose a replacement if a repair would be disproportionate.

If the consumer asks for a replacement, the trader can choose a repair if a replacement would be disproportionate.

(See s23 Consumer Rights Act.)

The trader can never "choose" to refund unless both a repair and a replacement would be impossible, but a refund in those circumstances would be the trader's only option and not really a "choice" in any meaningful sense of the word.

Of course there is nothing to stop a trader offering a refund, but a consumer would be mad to accept it if the goods had zero value and instead could be either replaced or repaired.

the_lunatic_is_in_my_head

Okell said:

You will sometimes see it mistakenly said on this board that the trader has a choice whether to repair, replace or refund.  That is wrong.  

Yes indeed I think the problem is that (from what I've read on here) the courts rarely enforce specific performance over such matters so ultimately the refund becomes a choice for the retailer through inaction. 

I certainly feel that pushing the point that (subject to the caveats you mention) there is a right to a repair or replacement, as the trader may see the error of their ways and provide what they are obligated to, and (not aimed at anyone in particular) to not highlight that correctly on here doesn't necessarily provide posters with best information we can give them. 

With regards to OP, looking at the website I would hazard a guess they received a batch of watches as part of some clearance and offered them free for large orders so aren't set up to repair watches and are unlikely to refund the value of a replacement watch which could be as much as the order. None of that is the customer's problem of course but, depending upon how much effort OP wishes to go to, pragmatically speaking it might be best to hope for the issue just needing a cheap repair at a local watch place. 

Jsuk

the_lunatic_is_in_my_head said:

RefluentBeans said:

 But as the item wasn’t purchased per se, it doesn’t fall in the scope of the consumer rights act. 

Where a trader transfers ownership of goods without a consideration this is still covered under the CRA but is treated as a contract for the transfer of goods rather than supply of.

This leaves the right to repair/replace, right to reject doesn't assist as zero monetary value, or any other consideration, has been assigned to the goods (looking at the site I'm assuming OP doesn't still have possession all the other goods to reject the entire order). 

The implied terms of satisfactory quality, etc would still apply so main option is to seek damages for breach of contract, ideally cost of repair or if unrepairable for less than cost of replacement, damages for that cost of replacement. 

Odds of company agreeing are slim so will likely require a letter before action and if still no joy OP's choice as to whether they go via small claims. 

The company appears legitimate so I'm assuming the watch is authentic OP? 

Hi, thanks, I'm still reading the replies but yes the watch is authentic and was sold in Argos for £80 although I think it's discontinued from Argos at least.

sheramber

Was there any warranty in with the watch?

Grumpy_chap

Could there be a "devil in the detail" thing here?

The OP purchased things totalling £100 to qualify for the "free" watch.
How was that presented on the invoice?

We regularly buy yoghurt in Tesco which are "four for the price of three" with an individual price of £1.  So three costs £3, or I can take four and still cost £3.  On the Tesco receipt that shows as four yoghurts at a unit price of £0.75, total £3.  If one yoghurt had gone off, the refund would be at the unit price so £0.75, not an option for Tesco to say "well, it was the free one that went off so no refund".

With the OP's order, if the paperwork reads as:
 - Things, total £100
 - Watch, total £NIL
 - Total £100

Then that would be different to the value of everything being reduced, so 
 - Things, total £90
 - Watch £10
 - Total £100

Okell

Grumpy_chap said:

...We regularly buy yoghurt in Tesco which are "four for the price of three" with an individual price of £1.  So three costs £3, or I can take four and still cost £3.  On the Tesco receipt that shows as four yoghurts at a unit price of £0.75, total £3...

Does it appear like that?

I'd expect it to show 4 x Yoghurt @ £1 = £4 and than a separate line showing something like "Yoghurt 4 for 3 offer" and a deduction of £1.

That's what I think Sainsburys does - but I may be wrong