Purchase of damaged goods

ShopKnot · Oct 16, 2009

I'm hoping someone can help me with regard to the purchase of a fridge on the internet. I'll explain the background. The fridge was purchased using a debit card by phone. No invoice/delivery note was forthcoming. The fridge was damaged but the supplier insists it should have been inspected (removal of packaging) within 48 hours of delivery.
My mother purchased the fridge; she's a pensioner and waited a week for me to open the goods. They contest that given the 48 hour rule was broken, we have no right to demand replacement of the unit. I've read their conditions and they maintain our Statutory rights are not affected (this comes after their 48 hour rule). The seller referred us to the manufacturer (I've heard this is a typical scam!) and they told us to go back to the seller. Can we demand a replacement for this damaged unit? Replies eagerly anticipated.

Tony · Oct 16, 2009

This is a common complaint. Under the Sale of Goods Item any fault identified in the first six months is assumed to be present at time of delivery. As you have just received it I would reject it and demand a refund and get a new fridge from a reputable dealer. However, the easiest thing will be to get them to provide a replacement. Make sure you report them to Trading Standards, some companies really take advantage of the elderly and should not get away with it. It is particularity unpleasant.

ShopKnot · Oct 17, 2009

Thanks for the response. I've checked out the Trading Standards website. They constantly use the term faulty goods - is this the same as damaged goods on arrival?

ShopKnot · Oct 17, 2009

The internet retailer is adamant their 48 hour rule (opening goods and inspecting them within 48 hours) applies to damaged goods. Is this correct? ie 48 hours for damaged goods, 6 months for faulty goods?

ShopKnot · Oct 17, 2009

Having looked at The Sale of Goods Act the following clause is included:

'if you were invited to carry out a thorough inspection of the product and fail to spot a defect which that inspection ought to have revealed'.

The internet conditions stipulate the product must be inspected within 48 hours. Do I have a 'leg to stand on'.

Chutzpah · Oct 17, 2009

A retailer cannot enforce any 'rules' that waive your rights under statutory law. Keep fighting

ShopKnot · Oct 17, 2009

Thanks Chutzpah, but I'm still confused. If The Sale of Good Act allows for provision of a 'get-out' clause (ie the 48 hour rule for inspecting goods-for this particular company), the surely it is failing the consumer? The condition is set-out under their terms and conditions. It seems they've got me.

Chutzpah · Oct 17, 2009

I would believe that the section you quoted would be in instances where they invite you to actively check an item for defects before purchasing and/or they pointed out any flaws.

I can't see how them delivering something to a house in packaging fulfils this. I think that's more for instances where, say, you're at a car dealership and you both agree on a price for a car that had a dent in the bonnet. You couldn't then attempt to have that fault rectified as it was obviously present at the time of sale.

If I'm wrong, I'm sure Tony will correct me.

Chutzpah · Oct 17, 2009

Oh, and incidentally, you mentioned no invoice or delivery note was with the fridge. How were you meant to 'know' about this 48 hour inspection period? Furthermore, what if it was delivered on a Friday when you were at work, and you couldn't report the fault until the Monday? Just a few flaws in their argument.

ShopKnot · Oct 17, 2009

Thanks for the reply. Some good points (I'm checking on the delivery note/invoice and I'm hoping we received neither! I think this is the case). Could they claim the conditions were on their website?

Tony · Oct 17, 2009

Have a look at this:

I recently purchased a fridge-freezer online. When it was delivered I had absolutely no chance of unpacking it on the pavement and checking it inside and out. I signed the delivery note, which stated that signing meant the goods were received in good condition. There was a clause to say goods signed as unchecked would be deemed to be accepted in good condition. When help arrived and we got the fridge inside, we found the massive dent on the outside of the fridge and the crack behind one of the shelves on the inside. Having contacted consumer direct, I wrote to the trader and the credit card company who stated that as i signed the delivery note they will not do anything. I have since written a second letter to the trader and am awaiting a reply.

My argument is that i did not have a reasonable opportunity to examine the goods and that they must prove I damaged the fridge after it was delivered. I have not had a reply from the credit card company yet. Where do I stand if i have to take them to court?

Returning Faulty Goods | Consumer Information

And the answer:

Abi, please see:
Delivery and Collection of Goods | Consumer Information
for your answer to this. In short a delivery note does not constitute acceptance of the goods and you do not have to prove a thing. The retailer is acting unlawfully in this case. Simply invoke your cooling off rights under the distance selling regs (7 days) and send the item back for a full refund, including a refund of all delivery charges.

And this:

The goods have arrived damaged

As you might expect, the supplier is under obligation to ensure the goods are well protected while they are in transit. The supplier must also make sure the delivery company/courier are aware that the goods are fragile or if they are to be kept or carried in a certain way. If they do not, they will be liable for any damage occurred in transit.

It is common for traders to sidestep liability by saying that you signed for them. A delivery note (as the name suggests) indicates merely that the product has been delivered and not that they have been accepted. If there is a problem with the goods, you may still reject them, particularly if you haven’t previously had a chance to examine them in person. With some items you will be asked to inspect the goods there and then and sign a form to say that they have arrived in satisfactory condition. The law states that you should have reasonable opportunity to examine the goods for yourself, so you could argue that ‘there and then’ is not reasonable and opt not to sign the form. You should however look at the supplier’s Ts and Cs to see whether they have imposed any time limit on reporting faults – although in line with the law, this should be reasonable.

It should be pointed out that if you did have the chance to examine the goods while they still in the shop, and you spot something wrong when it arrives that you should have spotted when you examined it, you may not be able to reject it. Although in reality, most shops will show some good will if you simply want to exchange it for another one.

From: Delivery and Collection of Goods | Consumer Information

ShopKnot · Oct 17, 2009

Than you Tony. I think the only way I can resolve this is by letter. The Company is 365 Electrical and their reputation is far from squeaky clean (Kelkoo reviews will confirm this). They have all the cards - 48 hour inspection rule, no need to provide a paper invoice (e-mail only - which my mother refused given she doesn't have a computer (she ordered by phone)). As far as I know she did not receive a delivery note - perhaps I've got something on them there. Also she was unable to open the packaging until I arrived. I may have to rely on the retailers good sense of 'grace'...we shall see.

Tony · Oct 17, 2009

Or to get Trading Standards involved. The 48 hour rule is irrelevant and does not affect your statutory tights. You don't need to rely on their grace. The reason they have these clauses is that it will match the contract they have with the shipping company - this is not your problem though.

Tony

ShopKnot · Oct 17, 2009

Thank you. First thing Monday morning.

Tony · Oct 18, 2009

Great let us know how you get on, if you were to get your mother to call she would get better service due to her age.

ShopKnot · Oct 19, 2009

Tony, I've referred the matter to Trading Standards. They have given me a reference number and asked if I will call them next week. This is a copy of my letter to 365 Electrical (less names, my mothers address). I'd appreciate if you would qualify anything I've said/omitted.

Mr **********
Customer Services Department
365 Electrical
111-115 King Richards Road
Leicester
LE3 5QG

19/10/2009

Dear *******,

RE: Faulty goods and the Sale of Goods Act 1979 (as amended)

On 02/10/2009 I bought a Integrated Fridge-freezer (New World NW5052FF) from 365 Electrical for £359.99. After removing the substantial packaging it was noted the product was badly damaged. The Appliance was crushed at the top rear with severe indentation on both sides.

The Sale of Goods Act 1979 (as amended) states that when a consumer buys goods from a trader they must be: as described; of a satisfactory quality; and fit for any purpose made known at the time of sale to the seller.

This legislation also states that the seller, not the manufacturer, is legally obliged to sort out a problem if the goods do not meet these requirements. Following a phone call to 365 Electrical on 13/10/2009, I was directed by a Customer Services Manager to resolve the problem with the Manufacturer. A representative of New World (the manufacturer) inspected the appliance on 15/10/2009 but informed my daughter our contract was with 365 Electrical.

My Son has made a number of phone calls to 365 Electrical and on each occasion they have stated I have no redress on their 48 hour rule(informing 365 Electrical of damage to goods).

I am a pensioner and was unable to remove the substantial packaging until my Son arrived - 10/10/2009. I did not receive a delivery note and the delivery courier did not offer to unpackage the item. I have not received an invoice for the product.

The Sale of Goods Act 1979 (as amended) says: if goods break within the first six months after purchase then there is a presumption the goods were faulty when sold.

My goods are not as described/fit for purpose/of satisfactory quality and I wish to claim a replacement of my goods under the Sale of Goods Act 1979 as amended.

My Son has informed Strading Standards and they are of the belief that 365 Electrical are in breach of their obligations under the 1979 Act (as ammended).They have issued a reference number and have asked him to contact them next week.

Please respond to my complaint within 7 days from receipt of this letter.*

Yours faithfully,

********** on behalf of Mrs **********

Tony · Oct 19, 2009

Looks perfect, one typo - you have Strading instead of Trading towards the end.

ShopKnot · Oct 19, 2009

Thanks - no spell check on the template facility!

ShopKnot · Oct 28, 2009

Tony, it's approaching 9 days since I sent the letter (asking for a reply within 7 days). I realise there's been a major postal strike and this will slow things down. Could you advise me on when I should take further action? I believe they may have 14 days under law??

Tony · Oct 29, 2009

Yes, I would give them 14 days. Then send them notice that you are going to take legal action. Any word from Trading Standards.

Tony

Purchase of damaged goods

New Member

What Consumer Founder

New Member

New Member

New Member

Moderator

New Member

Moderator

Moderator

New Member

What Consumer Founder

New Member

What Consumer Founder

New Member

What Consumer Founder

New Member

What Consumer Founder

New Member

New Member

What Consumer Founder