Incomplete order - Right to a replacement?

Discussion in 'Legal' started by xanhugh, Sep 18, 2013.

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  1. xanhugh

    xanhugh UKBF Newcomer Free Member

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    Quick question, I think it's fairly black and white. If a (very large) UK company sell me a TV , send it incomplete and then unable to find the missing accessories making the set useless, do I have a right to a similar spec replacement, or do they have a right to force issue a refund and collect the goods?

    The short version:

    I order a factory refurb TV with a 12 month warranty from Tesco Online Outlet. Item arrives, incomplete. Tesco unable to find replacement accessories so want to collect the TV set and give me a refund.

    I'm fairly sure they can't do this, and I have a right to an alternative from them of similar specification now that a contract of sale has been formed, agreed and accepted along with my payment..

    Can they force a refund and force exit of the contract of sale, or can I force an alternative similar product from them? Would likely be a dearer model as they are now out of stock of the 5 clearance items.



    ----------------------------------------------------
    The longer story:

    I ordered "factory refurbished" TV online from Tesco outlet with a 12 month warranty. Stated as "grade A" with all accessories, but may not be in the original box, and maybe light marks not effecting it's use. Great. Ordered, paid for and waited a week for the delivery.

    When I received the package there were several items missing from the package, most notably the power cable, remote control, instructions, 3D glasses, etc, making the tv itself useless and unable to even turn on.

    Checked back, definitely stated as being included, in fact two pairs of 3D glasses should have been in the pack. Called tesco, got an apology and assurance that the missing items would be sent out.

    Nothing arrived, called back a few days later, told they were having issues locating one of the items. I suggested they send the rest out so I can at least turn the TV on. Agreed, waited for delivery, nothing arrived.

    Call back, assured the package would be dispatched same day. Waited some more, nothing came at all. Called back again, told they were having issues on all of the items now, but will send out next week. Comes and goes, no delivery, call back again and told now they can't get hold of any of the parts so will arrange for a collection of the unusable set and a refund. I don't want a refund, I want a TV set with the specs I had ordered.


    As the TV set has been accepted by me, but now the promised power lead, remote and 3D glasses are unobtainable by tesco, is it up to me to decide if I want a replacement TV of similar quality/specs and reject a forced refund?

    Thanks in advance folks :cool:
     
    Posted: Sep 18, 2013 By: xanhugh Member since: Sep 18, 2013
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  2. ethical PR

    ethical PR UKBF Legend Free Member

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    You'd probably be best asking this question on a consumer rather than a business forum or contacting your local trading standards.
     
    Posted: Sep 19, 2013 By: ethical PR Member since: Apr 19, 2009
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  3. David Griffiths

    David Griffiths UKBF Legend Full Member - Verified Business

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    What do Tesco's terms and conditions say? That will be the most important factor. Odds on there will be a condition that fulfilment of the order will be dependent on stock availability - quite reasonably in my view. You've ordered something, they don't have it (in complete form) so they can't supply.
     
    Posted: Sep 19, 2013 By: David Griffiths Member since: Jun 21, 2008
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  4. xanhugh

    xanhugh UKBF Newcomer Free Member

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    After visiting my CAB earlier today, here's what I've been told, and the bottom line is yes, they are legally obliged to either send me the missing parts, or take back the whole set and provide me with a next nearest product without skimping on features.

    There are statutory rights to protect the consumer against misleading and inaccurate advertising. Tesco have every right to reject an order by way of refund within a short time as soon as the error is realised. This would protect against accidental misprice of an expensive item for pennies. However once payment for an order has been accepted, a contract of sale has been made which affords the consumer statutory rights which Tesco are unable to worm their way out of with terms and conditions - it's the law of the land.

    Tesco are from that point onward legally obliged to provide the product ordered, a contract has been agreed.

    If a fault is spotted in a reasonable timescale (ie a cracked screen, or a tv that simply wont turn on) then the customer as a right to a refund in full. The same applies to an intermittant fault, as it can be reasonably argued that a longer time period has been needed to find the fault. Beyond that initial reasonable time, then the consumer must allow the seller time to make right the problem. A refund is no longer an immediate right, but a repair or replacement is. The seller may choose to make a refund at this stage, and has a right to deduct from the refund a reasonable amount based on usage (if a TV is expected to last at least three years, it would seem unreasonable to deduct money for a set which has only had one month's use). If a product is returned or repaired 3 times, on the 4th occasion of fault/failure the refund is an available option again as the goods can be reasonably argued as unfit for purpose.


    Once an initial period has passed allowing the customer reasonable time to inspect the goods, they are deemed to have accepted the goods under the sale of goods act, it then becomes the responsibility of the seller to make right any fault or faulre to fulfill the contract of sale.


    In this case, the completed order was never received, however the partial delivery made by Tesco shows that they have accepted the order, and as such they are legally obliged to fulfill that order. As such they may choose to send me replacement parts (power cable, 3D glasses, instructions, remote) by taking my suggestion on where to purchase them. Simply claiming THEY do not have them in stock is not good enough, the items are still on general sale elsewhere, they will have to pay for them if they do not choose a second option, which is to replace the entire product with the next closest product available which must include features that either match or surpass the features on the product detailed in the contract of sale.

    In this case, they have sold 5 factory refurb sets with full retail packaging and contents at reduced prices. If they can't find all the items to complete the order (or are unwilling to source them due to costs), they will have no choice but to instead find a TV of similar or better specification and features which do not leave me at a disadvantage.

    Either way, it's going to cost them some money to put right, and incidentally I'm in contact with another buyer who has experienced exactly the same problem with the same set, so obviously not an isolated incident. Hopefully in future they will only advertise what they do in fact have available for sale.

    A lesson to both the consumer and business owner!
     
    Last edited: Sep 19, 2013
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  5. kulture

    kulture UKBF Legend Staff Member

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    On what basis does the CAB say this? I believe that the sales of goods act applies. If the retailer uplifts the TV and refunds in full so the customer is back where they started, what further action can the customer take?
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  6. xanhugh

    xanhugh UKBF Newcomer Free Member

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    SOG Act 1979 applies once a contract of sale is deemed to be accepted by both parties. Accepting my payment and attempting to fulfill the order with an incomplete package is most certainly an acceptance of the contract on their part, but an obvious failure to do so. The consumer has fulfilled their side of the contract by making payment, and it is only the consumer who may decide to release the seller from the contract, not up to the seller to release themselves. The seller may try to exit the contract by collecting the goods and issuing a refund, but they have no legal grounds for forcing such action, the law sides with the consumer's right to having the contract fulfilled.
     
    Last edited: Sep 19, 2013
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  7. kulture

    kulture UKBF Legend Staff Member

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    Yes, but Tesco could argue

    "The buyer must not require the seller to repair or, as the case may be, replace the goods if that remedy is-
    (a)impossible, or
    (b)disproportionate in comparison to the other of those remedies, or
    (c)disproportionate in comparison to an appropriate reduction in the purchase price under paragraph (a), or rescission under paragraph (b), of section 48C(1) below."

    and rescission would be cancel the contract and full refund.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  8. xanhugh

    xanhugh UKBF Newcomer Free Member

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    This isn't a faulty product, you are quoting from a different part of the SOG act
     
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  9. kulture

    kulture UKBF Legend Staff Member

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    Its not fit for purpose. I quoted 48A
    "48AIntroductory

     
    (1)This section applies if-
    (a)the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
    (b)the goods do not conform to the contract of sale at the time of delivery."

    In what way does this not apply to your situation.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  10. kulture

    kulture UKBF Legend Staff Member

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    It is all detailed in Regulation 5 of "The Sale and Supply of Goods to Consumers Regulations 2002"
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  11. xanhugh

    xanhugh UKBF Newcomer Free Member

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    Again, you are quoting regarding products with faults.

    Ordering a blue car and sending me a blue car which breaks down is a faulty product and dealt with under the SOG act under clear guidelines.

    Ordering a blue car and calling to let me know they only have red ones before agreeing on the contract of sale is the correct action to take. It's a material difference which may place the buyer in a disadvantage if blue cars are more desirable than red.

    Ordering a blue car and sending me a red car is a material difference. The seller has accepted the contract of sale and not given the consumer the chance to object to the replacement product. A contract of sale is now in place and the seller must now either find a red car of similar or better quality, or compensate the customer. The customer can demand a refund if they see fit (perhaps they see the red cars on sale elsewhere at a similar price), but their contractual right under the sale entered into also affords them the right to demand an alternative from the seller at the price already agreed.
     
    Last edited: Sep 19, 2013
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  12. xanhugh

    xanhugh UKBF Newcomer Free Member

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    You are quoting with reference to consumer guarantees of goods already accepted by both parties. Again, you are referencing faulty product legislation.
     
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  13. kulture

    kulture UKBF Legend Staff Member

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    I am sorry, you are wrong. The act does not simply apply to goods already accepted, and the goods clearly do not conform to the contract of sale.

    If you do not believe that the sale of goods act does not apply, on what basis do you say this, and what act does apply.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  14. xanhugh

    xanhugh UKBF Newcomer Free Member

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    I'm sorry, but you are wrong.
    The act does indeed apply once goods are accepted, and in fact does not apply UNTIL goods are accepted.

    There are many available official sources of the Act available online should you doubt what I am advising you. With specific reference to contractual acceptance I can guide you to the uk's legislation dot gov dot uk website /ukpga/1979/54 (i am unable to post links) which gives you the act in it's entirety.



    There you will find detailed the specifics of the "Contract Of Sale" (and it's formational qualifications), Sale by Description (the goods, implied fitness, timescales of delivery etc) the transfer of goods and completion (known as the "Sale"), and particularly relevant in this example "the remedies for breach of contract" (legal requirements by both parties once the contract of sale has been agreed and accepted).

    Is there anything else you would like to better understand?
     
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  15. kulture

    kulture UKBF Legend Staff Member

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    I am sorry. I see there is no point arguing with someone who does not accept that the sales of goods act applies to the sales of goods.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  16. xanhugh

    xanhugh UKBF Newcomer Free Member

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    A typical response from an individual blighted by their own ignorance and no longer wishing to listen to fact. "someone who does not accept that the sales of goods act applies to the sales of goods." - Perhaps you should review the sale of goods act 1979, instead of ""The Sale and Supply of Goods to Consumers Regulations 2002"". Do you not recognise the very clear differences? The clue is in the titles...

    I suppose it's to be expected from a moderator representing a website which focuses on the business rather than the consumer. I'll leave you to ponder that as you consider future advice you may offer to those who may misplace trust your legal opinions...
     
    Last edited: Sep 19, 2013
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
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  17. kulture

    kulture UKBF Legend Staff Member

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    You are quite correct, the clue is in the title.

    The sales of goods act applies to the sales of goods.

    Sale and Supply of Goods to Consumers Regulations 2002 are regulations arising from the act that apply to sales and supply of goods to consumers.

    Therefore Tesco sold you a TV. You are a consumer. They supplied you a TV. The act applies. The regulations stand. I am sorry that they do not say what you want them to say.

    There is no point in getting personal.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  18. xanhugh

    xanhugh UKBF Newcomer Free Member

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    I fail to understand where you are getting confused, or why you think the act contradicts the regulation?

    I have addressed your questions, you simply come back with a generic statements about goods not applying to the sale of goods act. There seems no reasoning with some people, particularly when trying to bamboozle your way out of a thread.

    I would suggest that you simply speak to a legal representative, as I have done before you continue to peddle your misinterpretations and disregard the factual legal advice I have been given by a qualified practitioner of law.
    We will get no further in this thread other than to confuse those who may reference it in future, unless of course your goal is to belittle consumer rights on a website clearly aimed at businesses rather than the consumer...

    By all means, have the last say ;-)
     
    Posted: Sep 19, 2013 By: xanhugh Member since: Sep 18, 2013
    #18
  19. kulture

    kulture UKBF Legend Staff Member

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    Firstly you are quite correct. You should always listen to a qualified legal practitioner rather than a forum. That said Citizens Advice people are not always qualified legal practitioners.

    I fail to see where you have addressed any of my questions. Nor have I at any point said anything about "goods not applying to the sale of goods act". Of course the selling of goods have everything to do about the sales of goods act.

    Anyway, you are entitled to your opinion.

    The Sales of Goods act is a very important act detailing the rights and obligations of both retailers and consumers when selling goods. It lays down the obligations on a retailer to sell goods that are fit for purpose and as described.

    In your situation you claim that Tesco did not fulfil its obligations to supply a TV as described because they did not include key accessories. So Tesco are clearly in breach of their obligations under the act. Thus you have the remedies laid out in the act. You do not want a refund, a repair is clearly impossible, so you want a replacement, as is your right. HOWEVER the act clearly gives Tesco some wriggle room in the replacement situation where they can claim that a replacement is either impossible or not economically viable. They could say that because you purchased a RECONDITIONED item and not a NEW item, it would put you in a better position to replace with NEW items and not reconditioned. No doubt you got a discount because the condition is reconditioned.

    This is the nub of the argument. It is not clear cut. You may get traction arguing that a replacement is reasonable. You may not. It is not 100%.

    Anyway, you have clearly made up your mind. I only post this here because as this is a business forum, it is not worth leaving up your erroneous assertions unchallenged.

    For those still reading, the sales of goods act is here http://www.legislation.gov.uk/ukpga/1979/54

    and the regulations that apply are here http://www.legislation.gov.uk/uksi/2002/3045/contents/made
    and in particular, here http://www.legislation.gov.uk/uksi/2002/3045/regulation/5/made

    Now since these are the official acts and regulations on the government web site, I will leave it to these sources to have the last word.
     
    Posted: Sep 19, 2013 By: kulture Member since: Aug 11, 2007
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  20. MikeJ

    MikeJ UKBF Big Shot Free Member

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    There is a perfectly good last word thread you know.
     
    Posted: Sep 19, 2013 By: MikeJ Member since: Jan 15, 2008
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