Defective / Damaged Goods

[harvey_harvey]

Hi there,
We've not come across this situation yet, but it something that is on my mind and I am looking to get a bit more clued-up should the situation arises. We sell products online via our website.

I've been doing some research online about damage and defective goods and wanted more clarification, advice etc..

In our terms & conditions, we state that any damages must be reported within 24 hrs of receipt and if the item has been signed for as being in good condition, then we have no legal obligation to replace it. Also, I seem to understand that if a customer is given the opportunity to inspect the goods delivered and either a) they inspect and sign for it, b) or dont inspect and sign for it, then they have accepted it and waivered their rights for a replacement or a refund. Have I understood that correctly? What would then happen, if 2 days later, and the product has been signed for, the customer comes back to us and says that there is a damage or defect that has only just been noticed? Can we refuse the claim or are we obliged to accept liability.

From what I seem to understand is that a customer could make a claim against you, if a product develops a manufacturing fault within 6 months - which is not general wear and tear and/or not been taken care of. How would you go about dealing with a situation like this? The online sites say that within 6 months, it is up to the retail to prove the item wasn't sold defective - but at whose expense does that have to proved? It seems unfair to the retailer that a customer could sit on an item for months, then one day decide they not longer want it and claim there there is a fault...

Thanks again in advance to any responses.

 

[deadgoodundies]

Easiest way to answer this is to ask youself the same question but from a customer point of view.

1. You buy something from the internet
2. It's delivered to you by whatever means
Question: Do you A) open it in front of the postman, inspect the goods to make sure that they are of good working order with no defects or B) sign for it take it inside and then check it over

Answer is of course B

Basically signing for delivery does in no way mean that they have waived their rights, all it means is that they have provided proof it's been delivered.

I'm not up on the how long a customer legally has to return a item based on being defective but I think if you haven't already then make sure you read of the distance selling regulations.

 

[harvey_harvey]

Thanks, I think the forum I was taking some information from was a little jumbled up as i've re-read it and doesn't seem right.

Any other advice is appreciated.

 

[Paul Kelly ICHYB]

Harvey,

it does depend on the type of sale (B2B, B2C, retail, online etc).

If only, definitely read the DSR, as things are different to normal retail.

You also have to look at whether your terms are unfair/impractical - what products do you sell?

As for warranty claim, again, can be product specific, but if electrical, it is 1 year (EU is 2 years, but not adopted by UK) and could be more if the manufacture says so!

 

[harvey_harvey]

Hi,
We sell exclusivley on the internet - we could be classed as being a home furnishing supplier. I've read distant selling and think I understand them the best I can.

We make it clear in our t&c's and like out competitors, we say that any damages must be reported to us within 24hrs of delivery, otherwise we accept no responsibility. Is that unfair? We've made our t&cs inline with our competitiors to ensure an even keel.

Maybe I am getting confused - damage is different than defect, right?-
Damage = broken pieces, smashed glass, dents etc.
Defect = draw doesn't shut, cupboard draw handle falls off??

If we sell our products online, am I right in understanding that the customer has 6 months to report a defect?
Is our condition that damages must be reported within 24hrs within the law? Our competitors have this condition - and we have a lot of competition...

Thanks again for any help.

 

[deadgoodundies]

Our competitors have this condition - and we have a lot of competition

Don't believe everything you read.
I've seen a lot of retailers use wording in their terms and conditions which would be against the DSR if the customer challenged. I can only speculate that the reason for it is that the average customer is not familiar with the DSR so the retailer will use that to "put off" the customer sending something back rather than them know their rights to be allowed to send it back.

I often see it on online retail sites when it comes to sale or clearance stock where they will put in something like "all clearance items cannot be returned for exchange or refund" which if the retailer was challenged on it they couldn't legally stick to their T&C's as it's against the DSR.

End of the day if you are Business to Customer (B2C) the DSR overrules anything that you or your competitors may put in ther terms and conditions (or that is how trading standards will see it)

I'm not an expert but that's how i've always interpreted it.

Just following on regarding the 24 hour limit you have.
What happens if the person who ordered it is on holiday for say 2 weeks but someone else in the household signed for the delivery so the order was left unopened for 14 days until the actual customer returned back.

 

[harvey_harvey]

Thanks for your advice. I might make some legal contact as we can't afford to be wrong.

I've picked out a few websites, and they also state this 24hr notice after delivery if there is damage, however someone like Amazon, give 30 days... its so confusing!.

Here is what one of our competitiors say, just to give a better idea.

If goods arrive in a damaged condition you must make a note on the carrier's delivery consignment note and it will be your responsibility to inform us within a reasonable period of time, which we will typically deem to be 48 hours from delivery.

Maybe our 24hrs is stringent - but you get the idea :0)

 

[harvey_harvey]

Just following on regarding the 24 hour limit you have.
What happens if the person who ordered it is on holiday for say 2 weeks but someone else in the household signed for the delivery so the order was left unopened for 14 days until the actual customer returned back.[/quote]

Maybe a legal expert can comment on this? Is someone authorised to sign on behalf of the 'actual' customer taking acceptance of the goods if they sign for it?

I think we could do with some proper legal advice.
There isn't a smiley for a 'can of worms'

 

[The Resolver]

I will assume :-

1. The sale is B2C.
2. The terms are effective. This depends on how noticeable they are to the consumer and whether you can show they were 'accepted' pre- sale. Many are not

You initially asked about the customer wanting his money back 2 days after signing on receipt that it was OK. in this scenario he is entitled to money back under the DSR whAtever he signed and whatever the T&Cs say. He can do this within 7 days whetherdamaged or not.

You then ask about a later rejection up to 6months. This depends on how nature of damage, use of the item and reasonableness of your terms . If the customer ought to be aware of the damage (eg not damage to something that should pull out but not need to pull out for some time later after use eg for cleaning) and yet uses the item for a period of time then a court would say he has accepted the damage and is not entitled to his money back. If not Then he is entitled to his money back whether or not he signed and did not report within 24 hours set out in your terms unless he failed to tell you within a reasonable period. The reason I say this is because 24 hours in our busy lives would not be considered reasonable or such that someone who had not read the t&cswould think reasonable and fair. Courts can invalidate terms in consumer contracts that are unfair.24 hours would be seen as more a timetable designed to benefit sellers unreasonably from fact that most customers do not read the t&cs.30 days ismore likely to be accepted by a court as being what most people would think reasonable. However you may deter some customers ignorant of the lAw by a 24 hr clause but do you want to get a bad reputation? The other reason for having a longer inspection period is that ,as it is not going to be invalidated as an unfair term, it will be easier to defend a chargeback claim if that is the redress route followed by the customer.

Always include an online mediation clause for any sort of dispute that gives you the advantage that if a customer goes straight to court you have the opportunity of persuading the court to order the customer to pay some of your legal costs even if he wins on the basis the proceedings were unnecessary. You would have to point out the clause as soon as he made his complaint.

 

[harvey_harvey]

Thanks to all for your advice and thoughts.
In view of your advice and to keep to our policy of providing good service, I will review our terms. Firstly we will allow 7 days from delivery for the customer to inspect and report any damages/defects which we will sort without quibble. After the 7 days we will assess to find out if there is grounds for a replacement or refund and the item hasn't been misused etc.
The 6 months defects we will agree with but again we will assess if the item has been taken care of and not general wear and tear.

The only thing that will be different is our terms for our bespoke item. We will allow 48hrs (currently 24hrs) for a customer to notify us of any damages or defects. Under Dsr, bespoke items cannot be cancelled, thus the 7 day period is not valid. Damaged items will be replaced if we're advised within this 48hr period. We will refuse an exchange if the item has been fixed to the wall, especially glass products that have been fixed to the wall using glue. We believe the customer should inspect the goods before fixing pernamently.

We will also add that any court costs as a result of action maybe recovererd from the customer, but I'm going to look further into that.

Hope you find our new terms more favourable and if anyone has any future advice, point out an error in my understanding, please feel free to comment

regards.