Online purchase “not fit for purpose”, what are our rights..?

martin2345uk

My OH bought an automatic misting system for his tank of lizardy things, it’s mean to spray a powerful fine mist every set number of minutes to keep everything damp in there. 

However when he received the item and tried it, it was HORRENDOUSLY loud, I mean you could hear this thing from every room the house. Added to that, the jets were not at all powerful and produced a less fine mist than his other system that was a fraction of the price.

He returned it as faulty, as we assumed for it to be making a noise like it did, coupled with the lack of pressure, that there must be something wrong with it. 

However some weeks later, after chasing up a few times, they have sent a mail saying their tech team have confirmed it’s not faulty and is he happy for them to send it back to him..?

What are our rights in a case like this? It was sold as a product “for the home” so for me, a deafening noise means it’s not really fit for purpose, but I don’t know if we have any recourse here. It was £95 so not exactly breaking the bank but still…

Thanks in advance for any advice!

the_lunatic_is_in_my_head

Hello OP

Not fit for purpose covers a specific purpose you've asked for, i.e will this lawnmower cut brambles.

There is a requirement under satisfactory quality for "fitness for all the purposes for which goods of that kind are usually supplied" which is what you would specifically argue.

Burden of proof lies with the retailer within the first 6 months:

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

(14)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.

Their say so doesn't really cut it but if they have something credible to show their testing demonstrates the goods are fine that could be acceptable. 

Personally I'd focus on the lack of spray rather than the noise (was the noise level stated, if not possible argument under Consumer Protection from Unfair Trading Regulations but that isn't as clear cut as the Consumer Rights Act).

Where did you buy from and how did you pay OP? 

Alderbank

The purpose of the automatic spray is to produce a mist sufficient to keep the atmosphere of your terrarium suitably damp for lizardy things.

Basically, if it does that then it is fit for purpose. Does it do that?

You will struggle to claim that it is not fit for purpose merely because it doesn't meet your assumptions. After all, your assumptions might have been that it would feed the lizardy things and make you a cup of tea in the mornings.

However if your OP had discussed specific requirements before purchase, such as 'My OH is a very light sleeper. Is this sprayer scarcely audible in use?' and they had assured him it was, then the excessive noise would have made it unfit for purpose.

martin2345uk

the_lunatic_is_in_my_head said:

Hello OP

Not fit for purpose covers a specific purpose you've asked for, i.e will this lawnmower cut brambles.

There is a requirement under satisfactory quality for "fitness for all the purposes for which goods of that kind are usually supplied" which is what you would specifically argue.

Burden of proof lies with the retailer within the first 6 months:

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

(14)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.

Their say so doesn't really cut it but if they have something credible to show their testing demonstrates the goods are fine that could be acceptable. 

Personally I'd focus on the lack of spray rather than the noise (was the noise level stated, if not possible argument under Consumer Protection from Unfair Trading Regulations but that isn't as clear cut as the Consumer Rights Act).

Where did you buy from and how did you pay OP? 

Thanks, it was bought from a small online retailer who specialise in such things; I believe he paid on his debit card (annoyingly!).

eskbanker

martin2345uk said:
I believe he paid on his debit card (annoyingly!).

It doesn't matter - since the item value was below £100, section 75 protection wouldn't have applied, so his rights with a debit card are just the same as if he'd paid with a credit card in this case, i.e. access to chargeback.

Grumpy_chap

Why did he return it as faulty / not fit for purpose, rather than a change of mind / return for any reason or none within 14 days?

TELLIT01

The item was fit for purpose, even if not up to the expectations of the OP.  They should have used the Distance Selling right to return and informed the vendor within 14 days.  Returning it as faulty was their mistake.