Purchasing an item which is faulty, business to business

adronocus · 12 May 2018 at 12:51PM

Can anybody please please help? Purchased a relatively expensive item on a business to business basis. Item has turned out to be faulty. Have returned item as requested by seller but they haven't been very cooperative about what they are going to do about the faulty item ie refund or repair. Since contacting them yesterday and asking them challenging questions have noticed that they have now changed their terms & conditions on their website which now mentions about terms & conditions with relation to business to business transactions. Realise that our rights are somewhat limited to that of a consumer but wasn't sure if we had any rights under the Unfair Contract Terms Act 1977?

Should also mention that when the items was bought over the telephone they did not make any reference to their T&C's and surely if the item is still under warranty we still have rights as a business customer. Surely they should have T&C's for business customers?

Additionally as they are the middle man and didn't actually own the item in question (they had to order from another party), can they actually impose liabilities with relation to faulty goods when they are not their goods to start with.

We have had an independent service undertaken on the item and they have confirmed that the items is faulty. All we want is a replacement item. Any assistance on this would be gratefully received. Many thanks

dj1471 · 12 May 2018 at 1:12PM

In B2B you have no rights and there are no unfair terms. The T&Cs will be those in force at the time of purchase, they can't be changed retrospectively.

Ultimately your options are determined by the terms of your contract, but if the supplier isn't cooperating you'll need to investigate legal action. If no T&Cs were supplied then your contract is a simple "purchase X for £Y" and the seller is in breach if the item is faulty.

How did you pay? If by card you should be able to chargeback the transaction - speak to the card issuer.

adronocus · 12 May 2018 at 3:06PM

Dear dj1471, thank you for your response. Unfortunately it is going to be difficult for us to prove that the T&C's in force at the time of the purchase (ie October 2017) are not the ones that appear on their website now! The item was paid for by debit card over the telephone. Are we still able to speak to our bank about this? The seller did contact us yesterday but this was only because we sent in a complaint letter but all that they have said is that they have to wait on what the manufacturer says following the testing of the product. We know that the responsibility lies within the immediate retailer not the manufacturer but we feel that they are going to say that the fault is not a manufacturers fault. The item is still in warranty but this warranty doesn't seem to mean anything? I guess as you say we will need some legal action which I assume we can charge to them if things go in our favour. Thanks again

KeithP · 12 May 2018 at 3:13PM

Of course you can contact your bank.
If you are thinking about a changeback, then bear in mind that a chargeback is usually only available for 120 days after purchase.

adronocus · 12 May 2018 at 4:18PM

Keith; thanks for that but sadly 120 has already lapsed. I will give the retailer a couple of more days & then send them a letter before action, not sure if there any templates on this site? Thanks

unholyangel · 12 May 2018 at 4:39PM

dj1471 wrote: »

In B2B you have no rights and there are no unfair terms. The T&Cs will be those in force at the time of purchase, they can't be changed retrospectively.

Ultimately your options are determined by the terms of your contract, but if the supplier isn't cooperating you'll need to investigate legal action. If no T&Cs were supplied then your contract is a simple "purchase X for £Y" and the seller is in breach if the item is faulty.

How did you pay? If by card you should be able to chargeback the transaction - speak to the card issuer.

Not true I'm afraid. They just don't have the rights afforded to consumers and can contract out of what rights they do have. Also, the Unfair Contract Terms Act 1977 applies to b2b.

However, you are correct that you cannot retrospectively vary agreed terms.

What remedies are open to OP will depend on whether it was a breach of a condition, breach of a warranty or breach of an innominate term along with whatever T&C's they were given before entering the contract.

The test for goods under a b2c contract is acceptability while the test for a b2b contract is usability.

adronocus · 12 May 2018 at 6:40PM

The item was ordered over the telephone and no t&c’s were mentioned however the company/manufacturer that provided the item to the retailer have absolutely no t&c’s.

I believe that under the unfair contract terms act 1977 the goods in question must be owned by the retailer and basically they were not, they ordered from a third party.

I think that I will be drafting a letter which fingers crossed will make them see sense.

Thanks for all your responses

hollydays · 12 May 2018 at 7:04PM

Surely when the retailer orders them, they become the owner, for want of better terminology.

unholyangel · 12 May 2018 at 7:23PM

adronocus wrote: »

The item was ordered over the telephone and no t&c’s were mentioned however the company/manufacturer that provided the item to the retailer have absolutely no t&c’s.

I believe that under the unfair contract terms act 1977 the goods in question must be owned by the retailer and basically they were not, they ordered from a third party.

I think that I will be drafting a letter which fingers crossed will make them see sense.

Thanks for all your responses

If that were true, you'd never be able to enter into a contract to buy anything that wasn't made yet. What the UTCA does is mean that they can't disclaim liability for the certain provisions that relate to title.

(1)The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by him after the making of the contract of sale, in this Act called future goods.

(1)In a contract of sale, other than one to which subsection (3) below applies, there is an implied [F8term] on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass.

Its a bit more complex than the above but I was just quoting those to show that the retailer doesn't need to own the goods at the time the contract is made.

steampowered · 12 May 2018 at 9:21PM

The Sale of Goods Act 1979 applies to B2B contracts.

Among other things, it requires the trader to have good title to the goods they are selling. It also requires goods to be satisfactory quality and fit for purpose.

I would suggest that should be your starting point.

It is possible for traders to contract-out of the warranty that goods are satisfactory quality and fit for purpose. But they can't contract-out of the warranty as to title.

DoaM · 13 May 2018 at 3:08PM

Search for the Wayback Machine ... that may let you find the website T&Cs that applied back when your contract was formed.

Purchasing an item which is faulty, business to business

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