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The winter of 2010-2011 was characterised by one of the heaviest last minute Christmas shopping rushes in living memory, due to the atrocious weather conditions. Much of the High Street activity was squeezed into the last shopping week (indeed the last shopping day) before Christmas after millions had been marooned in their homes for days together by snow and ice. But another cause was people rushing to buy a second set of gifts over the counter, after the snow stopped goods which had been ordered on the internet from arriving in time.
Many people objected to having to pay for planned Christmas gifts that did not arrive till February. Most dissatisfied customers will have had their complaints dealt with in a reasonable manner, but inevitably there were some who were unhappy at not being offered a refund, or indeed compensation for the failure to deliver an item before a specified date.
It is when this sort of unreasonable attitude is encountered that people start thinking about going to law, especially if an expensive, ‘big ticket’ item is involved or simply because they feel they have been denied natural justice.
Under the Consumer Protection (Distance Selling) Regulations 2000 (which apply to all goods bought throughout the year and not just to delayed or unsatisfactory Christmas gifts) consumers have a no-quibble right to cancel a "distance contract". This is defined as: “any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded." In other words, anything bought not over the counter but by phone, internet, or post is covered.
The consumer must be provided with: details of the identity of the supplier and, where the contract requires payment in advance, the supplier's address; a description of the main characteristics of the goods or services; the price of the goods or services including all taxes; delivery costs where appropriate; the arrangements for payment, delivery or performance; and the existence of a right of cancellation, with a few minor exceptions.
Under regulation 8 the supplier must give certain information to the buyer in writing or some other durable medium, before the conclusion of the contract or in good time thereafter. The information referred to is mainly that there is a right of cancellation and how to exercise it, but also information about the identity of the supplier, delivery costs, price, description of the goods, arrangements for delivery etc. must be provided.
When the supplier complies with regulation 8 before the day on which the contract is concluded, the consumer effectively has seven working days in which to cancel the contract. If the supplier does not comply, the customer generally has three months to cancel.
These regulations usually apply only where the seller is a business and the buyer is not. Therefore they would probably not be valid if the consumer was buying from another private individual on e-bay or similar internet site.
When it comes to face to face buying (i.e. usually over the counter) the most frequently encountered complaint is about the quality of the goods. Goods sold in the course of a business must be of satisfactory quality. "Satisfactory" will depend on several circumstances but important factors are fitness for purpose, durability, appearance and finish, safety, and freedom from minor defects. Everything turns on the facts of the case. Anyone buying a very expensive brand is entitled to expect it to be perfect or nearly so, but the standard will be less exacting for a cheap item from stock. It is not possible in the case of consumer contracts to exclude this duty by any contractual term.
If this standard is not achieved, the buyer can keep the goods and claim damages, or can return them and get his money back; but they cannot be returned after they’ve been "accepted". In effect this means that the buyer should reject the goods as soon as he has had a reasonable opportunity to inspect them and found them to be unsatisfactory. Difficulties may arise if he delays too long, or if he carries on using them after the defects have been discovered. Agreeing to a repair does not necessarily mean that a buyer has accepted the goods, but again this is a question of degree.
When goods do not conform to the description expected, the buyer can generally require the seller to repair or replace them within a reasonable period of time, at the seller’s expense and without inconvenience to the buyer. A seller who fails to do that may be required to reduce the price of the item, or the buyer can cancel the contract and obtain damages, which may, or may not, be equal to the money spent.
We would advise most unsatisfied buyers of consumer goods to try and reach an amicable settlement without going to law, particularly if the money equivalent is small in value. However the law is always an option and some people may feel they require legal advice on this issue, even if they don’t want to go as far as taking it to court.
If you have a problem with a faulty item, contact John Mitchell, Richard Godden, Ann Scott, or Douglas Peters on 0131 222 8000.
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