Wrong item sent

Okell

Grumpy_chap said:

Okell said:

You ordered xxx but they sent yyy, so the goods are NOT as described, and they are breaching your statutory consumer rights under the above legislation.

Tell them you want yyy to be exchanged for what you actually ordered - xxx - and that they need to pay the return costs.  If xxx is no longer available you want a full refund.

Despite several posters asking "do you still have the tags", the tags are irrelevant.  They sent you the wrong shirt.  Under the law you are entitled to exactly what you ordered at no extra cost to you.  The tags are a complete red herring.

You may need to assertively - but not rudely - emphasise to them that you are not trying to use their own returns policy.  What you are doing is exercising your legal rights under the above legislation to get what you ordered and paid for - not something else - and so it's irrelevant whather the tags are still attached (or even if they still exist) or not.

They sent the wrong shirt.  It's their problem, not yours

In the case of "goods not as described", how long does that really apply?

There have been prior threads where it has been suggested it applies forever and matters not what the use made has been in the meantime.

I actually had something similar happen to me two Christmas's back.  I wanted a Nike backpack which had two versions - "standard" and "youth".  Sports Direct were listing the standard backpack at £5 less than everywhere else.  My wife purchased me the backpack from SD and it became my Christmas present that year.  The reason for the lower price became apparent when I unwrapped it and found the youth version had been supplied, which is just cheaper.  I decided to just keep and use the backpack as received - the price paid for the backpack received was still the fair "correct" price but not as per the description.  I have now used the backpack 2 or 3 times a week for a couple of years.  After what time would the "not as described" right to return expire?

As Ergates says:  "It depends".

In the particular case of your backpack you seem to have realised immediately that it was not what your wife ordered* - ie was not as described.

Despite this, for whatever reason, you decided that you were happy with it, started to use it, and have continued to use it 2 or 3 times a week for the last two years.

Although the Consumer Rights Act did not retain the concept of "acceptance", I would be surprised if - in the case of your rucksack - the law was that your wife still had some remedy against SD on the grounds that it was not as described.

When the right to a remedy was lost is not clear, but it seems to me that it was lost - in the particular case of your rucksack - at some point between (1) you realising that it was the wrong one but would try it anyway and (2) two subsequent years of regular use.

If, however, you had said "Oh - it's not the rucksack I thought it was, but it seems OK so I'll try it out" and after a couple of "tests" you had decided that it was unsuitable because it was not as described (eg the youth size was too small for an adult torso) then I believe your wife could still have rejected it.  But definitely not after two years of regular and untroubled use.

Your rucksack example, however, doesn't really address how long the right to reject lasts in respect of "not as described".  Your example is complicated by the fact you knew that it was the wrong* rucksack, but basically decided to keep it anyway

The real question is how long does the right last if you do not immediately realise that the item is not as described?

I don't know the answer, but I suspect it would be along the lines of " Up to 6 years depending on the facts".

I'm not a car nerd or techno geek but I can imagine circumstances in which a car or a bit of IT kit was described and sold as being to a particular specification when it actually wasn't, and this fact only coming to light a couple of years - or perhaps more - later.  Depending on all the facts I can imagine a court could hold that a consumer still had a right to reject for not as described even after a couple of years or more of untroubled use.

In fact the more I think about it, the more I don't see any difference between (a) having an item that becomes faulty after a couple of years because of an intrinsic or latent fault present at the point of sale and (b) the discovery after a couple of years that something was not as described at the point of sale.  Both seem to be entitled to a remedy under the CRA for up to 6 years.  The only real difference is that after 6 months it should be easier to prove that something was not as described rather than that it was intrinsically faulty at sale.


*I assume your wife did actually order the adult version rather than the youth one?  From your comment "The reason for the lower price became apparent when I unwrapped it and found the youth version had been supplied, which is just cheaper" it's not clear whether she ordered the adult version or simply ordered the cheaper version

Okell

A more interesting variation on the grumpy chap scenarion would be if Mrs Grumpy had ordered him a £500 rucksack and SD had only supplied a £50 one, but Mr Grumpy (and Mrs Grumpy) never realised the wrong one had been delivered until after Mr Grumpy had been using it continuously for two (or more) years and it had fallen apart.

Would Mrs Grumpy still have a claim for "not as described"?

How much - if anything at all - would she be entitled to claim for "not as described"?

Okell

Wasn't there a thread on here earlier this year about a bottle of vintage wine that had been misdescribed and the misdescription was only discovered many years later?

Or was that a question about when a cause of action accrued for limitation purposes?  I can't remember the details.

I've tried searching but the search function on this forum is utterly useless.

Alderbank

Okell said:

A more interesting variation on the grumpy chap scenarion would be if Mrs Grumpy had ordered him a £500 rucksack and SD had only supplied a £50 one, but Mr Grumpy (and Mrs Grumpy) never realised the wrong one had been delivered until after Mr Grumpy had been using it continuously for two (or more) years and it had fallen apart.

Would Mrs Grumpy still have a claim for "not as described"?

How much - if anything at all - would she be entitled to claim for "not as described"?

Mrs Grumpy has the right to make a claim if at the point of sale the goods did not conform to contract. Even in the unlikely event that after two Christmases the rucksack mysteriously morphed into the item she had ordered, paid for and expected she would still have a claim because the contract had been breached at the point of sale. However in practice she would then no longer have any evidence to support a claim.

Her short term right of rejection (which gives her the right to a full refund) is time-bound to 30 days after receiving the goods. However the final right of rejection (the right to receive a refund which has been reduced according to use) is not time limited by CRA, although her ultimate right to pursue the claim might be limited by other different legislation.

Back in 2015, Parliament could easily have incorporated a condition to limit claims to for example 24 months after the breach was apparent or should have been apparent, but they chose not to do so.

However they did take the time to consider how much refund she would be entitled to claim for. The right they finally decided on in s24(1)(a) is 'an appropriate amount'.

Grumpy_chap

To clarify with regard to the backpack.
The standard one was something like £40 everywhere with the odd retailer having it at £38.
The "youth" version was £37 with the odd retailer having it at £35.
SD had the standard backpack listed twice.  One listing at £38 and a second, identical listing at £35.  I shared the link with my wife who proceeded to purchase.  
A third listing had the "youth" version at £37.
When unwrapped, I noticed it was the "youth" version even though the listing was (still) clearly showing the standard backpack.
It was clear what the mistake was by SD.

elsien

Realistically speaking though your hypotheticals that are just that. You get something out of the bag and inspect it, you realise it’s not as described, you return it before you wear it or do anything else with it (outside of what is necessary to check).  Is that not the standard process that we would all go through? 

I’m struggling to see anyone using a backpack for two years and then trying not as described. Ditto wearing something, washing it and returning it - I know some people do try that on, but that’s them playing the system not a genuine concern.

Grumpy_chap

Just for clarity, I have no intention to return the backpack.

I was asking to try to get an understanding of when the "not as described" remedy expires.

In the case of the OP's t-shirt, the tags are removed but people are suggesting that is immaterial.

There have been other threads where people suggest that "not as described" remedy lasts indefinitely.  I think we have all agreed, by the example of my backpack that "not as described" does not create an indefinite remedy.

So, the question is how long does the "not as described" remedy survive?
Get the t-shirt?
Try on the t-shirt?
Remove the tags from the t-shirt?
Any longer?

user1977

Grumpy_chap said:

Just for clarity, I have no intention to return the backpack.

I was asking to try to get an understanding of when the "not as described" remedy expires.

In the case of the OP's t-shirt, the tags are removed but people are suggesting that is immaterial.

There have been other threads where people suggest that "not as described" remedy lasts indefinitely.  I think we have all agreed, by the example of my backpack that "not as described" does not create an indefinite remedy.

So, the question is how long does the "not as described" remedy survive?
Get the t-shirt?
Try on the t-shirt?
Remove the tags from the t-shirt?
Any longer?

I wouldn't say there isn't any "hard" longstop date for bringing a claim, it's just a question of how plausible it is that the recipient has only discovered the error some time after the item was delivered. We've had numerous threads of e.g. DIY components being delivered but not unpacked until you get round to the project, or technical items where the fact it has the wrong specification isn't immediately obvious.

Alderbank

elsien said:

Realistically speaking though your hypotheticals that are just that. You get something out of the bag and inspect it, you realise it’s not as described, you return it before you wear it or do anything else with it (outside of what is necessary to check).  Is that not the standard process that we would all go through? 

I’m struggling to see anyone using a backpack for two years and then trying not as described. Ditto wearing something, washing it and returning it - I know some people do try that on, but that’s them playing the system not a genuine concern.

Be careful not to confuse the right to return goods which do not conform to contract (Consumer Rights Act) with the right to cancel a distance purchase (Consumer Contracts (Information, Cancellation and Additional Charges) Regulations).

They seem similar but they are separate rights under different laws and are easy to mix up.

The CCR right to cancel is the one where you can return goods within 14 days for any or no reason but you can only examine them as in a shop, not wear wash and return after the special occasion.

The CRA right to return is where the goods are not as described (or some other fault). No restrictions on what you have done with the goods or when you return them and full refund if you return them within 30 days, thereafter a reduction for 'use'.

(Above is simplified).

Okell

Grumpy_chap said:

... I was asking to try to get an understanding of when the "not as described" remedy expires...

... There have been other threads where people suggest that "not as described" remedy lasts indefinitely.  I think we have all agreed, by the example of my backpack that "not as described" does not create an indefinite remedy...

Sorry but I think your question is misplaced because it seems to be based on what I would consider to be a false premise - ie you seem to believe that "not as described" as a complaint is, or should be, constrained by some sort of time limit.  But why would you think that?

If we ignore both the impact of - and any rationale for - the Limitation Act, the Consumer Rights Act doesn't put any time limit on consumers being able to seek remedies for breaches of the legislation.  There's no time limit on satisfactory quality; no time limit on a particular purpose; no time limit on matching a sample or on matching a model seen or examined.  Why should there be a time limit on "not as described" but not on any of those others?

Going back to your rucksack, let's analyse it differently.

Let's first ssume you ordered the rucksack yourself and SD delivered the wrong one to you.  Let's further assume you realise it's the wrong one, but you decide to give it a try anyway and you end up keeping it and you use it twice a week for two years.  I would say you have lost the right to any remedy for "not as described" not because it has time expired, but rather because you knew it wasn't what you ordered, and by your conduct in using it for two years you waived any remedy you might have for "not as described".

If on the other hand your wife ordered the rucksack but you - because you did not want to unduly upset her - did not tell her that SD had delivered the wrong one and you went onto use it for two years before she (the consumer) realised that the wrong one had been delivered, I think she could strongly argue that she still had a legitimate claim under the CRA for not as described.  The difference being that she (the person who bought the rucksack) has played no part in deciding to keep it and use it, and didn't even know that the wrong one had been delivered.  She hasn't done anything to lose her right to a remedy. 

The problem with this situation is that - as @elsien has pointed out - it's not realistic.  I doubt very much that there are many instances where the wrong item is delivered and it isn't picked up immediately.  Most people would try to get it sorted out sooner rather than later, and i suspect those who have knowingly put up with the wrong item for a couple of years will continue to put up with it rather than raise it as an issue after two years.

Grumpy_chap said:

... In the case of the OP's t-shirt, the tags are removed but people are suggesting that is immaterial...

... So, the question is how long does the "not as described" remedy survive?
Get the t-shirt?
Try on the t-shirt?
Remove the tags from the t-shirt?
Any longer?

It depends... 

I think that provided the trader has sent an item other than that which was ordered, then the consumer has a remedy under the CRA for "not as described"

If the wrong t-shirt is tried on for size or to see what it looks like, I don't think the consumer necessarily loses their rights under the CRA.

Ditto if the tags are removed or even if they are binned.

I think there is only a problem for the consumer if they are aware that the wrong item has been receieved and if, rather than raising it with the trader at an early opportunity, they proceed to treat the item in a way that would be inconsistent with arguing at a later date that it was the wrong item.

I don't think trying a t-shirt on a couple of times or removing and disposing of the tags would necessarily be treating it in a way inconsistent with arguing subsequently that it was the wrong item.

But I think if the consumer knows it is the wrong item and continues to wear it regulalrly over a period of two years, then that would definitely be inconsistent with subsequently arguing it was the wrong item.

To me it's not a question of how long has expired, but a question of what you have done with it after discovering the item is not as described.