Ongoing issue with Currys and DPD

Ergates

A_Geordie said:

I should point out that whilst s29 is entirely correct as to who bears the risk in the goods, you can't demand a replacement of the goods. You have to rely on section 28 (delivery of goods), extract of the relevant sub-sections below: 

s28...

(3) Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—

(a) without undue delay, and

(b) in any event, not more than 30 days after the day on which the contract is entered into.
... 

(6) If the circumstances are that—

(a) the trader has refused to deliver the goods,

(b) delivery of the goods at the agreed time or within the agreed period is essential taking into account all the relevant circumstances at the time the contract was entered into, or

(c) the consumer told the trader before the contract was entered into that delivery in accordance with subsection (3), or at the agreed time or within the agreed period, was essential,

then the consumer may treat the contract as at an end.

(7) In any other circumstances, the consumer may specify a period that is appropriate in the circumstances and require the trader to deliver the goods before the end of that period.

(8) If the consumer specifies a period under subsection (7) but the goods are not delivered within that period, then the consumer may treat the contract as at an end.

(9) If the consumer treats the contract as at an end under subsection (6) or (8), the trader must without undue delay reimburse all payments made under the contract.

Assuming 28(6) doesn't apply, you then follow 28(7) which is to demand that Currys deliver the goods by a certain time e.g. 7 days. If they cannot meet that demand then 28(8) kicks in, which is for the OP to end the contract and get a reimbursement. There is no option for replacement of goods.

In short, OP should write to Currys, refer to s28 and demand the phone be delivered by X date, if not the OP is ending the contract in accordance with s28(8) and Currys must reimburse the OP.

Under the circumstances described it isn't a "replacement" the OP would be demanding, it would be a... placement (?) - i.e. delivery of the paid for goods as per the contract.  What Okell was referring to would be s28(7)

A_Geordie

Ergates said:

Under the circumstances described it isn't a "replacement" the OP would be demanding, it would be a... placement (?) - i.e. delivery of the paid for goods as per the contract.  What Okell was referring to would be s28(7)

Sorry I'm not following. Okell mentioned the OP should demand a replacement of the goods but the CRA doesn't grant the consumer that right. The right is for delivery of the goods within a specified time. Now, whether Currys chooses to deliver the original goods or send replacement goods to the OP, that's entirely at their discretion, so long as they do so within the stipulated timeframe. 

Obviously the sensible option here would be a replacement of the goods but Currys could decide not to do that and simply refund the money once the OP has confirmed that they are treating the contract as cancelled, after they drag their heels. 

Abzmo

After contacting creation, they have advised  to wait until currys finish their investigation (23rd December) If the outcome is not satisfactory to then make a complaint to Currys.  If the matter is still not resolved, I am to contact creation again and make a complaint with them using S75

Ergates

A_Geordie said:

Ergates said:

Under the circumstances described it isn't a "replacement" the OP would be demanding, it would be a... placement (?) - i.e. delivery of the paid for goods as per the contract.  What Okell was referring to would be s28(7)

Sorry I'm not following. Okell mentioned the OP should demand a replacement of the goods but the CRA doesn't grant the consumer that right. The right is for delivery of the goods within a specified time. Now, whether Currys chooses to deliver the original goods or send replacement goods to the OP, that's entirely at their discretion, so long as they do so within the stipulated timeframe. 

Obviously the sensible option here would be a replacement of the goods but Currys could decide not to do that and simply refund the money once the OP has confirmed that they are treating the contract as cancelled, after they drag their heels. 

What I mean is - what OP would be demanding wouldn't be a "replacement".   A replacement would imply that OP has the goods and isn't satisfied with them (e.g. they're damaged).  But OP has never received the goods, so when Okell said to "demand a replacement", what that actually meant was demand they deliver the phone as contracted - which is (essentially) what s28(7) says.

The phone that DPD have lost wasn't OP's phone, it was Currys'.

the_lunatic_is_in_my_head

I think you are both right, Section 28 says you can (indeed need to) request delivery within another reasonable time but ultimately the remedy is treating the contract at an end rather than having an entitlement to delivery.

I guess you could attempt to seek specific performance of the contract (i.e to get the phone) via the courts but I don’t believe that is commonly awarded for these type of issues. 

A_Geordie

Ergates said:

What I mean is - what OP would be demanding wouldn't be a "replacement".   A replacement would imply that OP has the goods and isn't satisfied with them (e.g. they're damaged).  But OP has never received the goods, so when Okell said to "demand a replacement", what that actually meant was demand they deliver the phone as contracted - which is (essentially) what s28(7) says.

The phone that DPD have lost wasn't OP's phone, it was Currys'.

I understand what you're saying now, but it's important to get the phraseology right. If someone demands a replacement of the goods, I take that to mean you are asking to send out another phone rather than delivering  a phone as agreed. Like I said in my last post, the delivery of the phone could be a replacement of the original as long as it matches the same specs as agreed..