Requesting a replacement rather than a refund

[IANL]

Curious to know if in law I can insist on a replacement for a faulty product rather than a refund,

Business to Business transaction.

I ordered 4 units of a product that was sold with a manufacturers warranty. One unit failed and I informed the supplier, they said they would send a replacement. They took some time so I contacted the manufacturer and it transpired that the units were sold to a distributor under an OEM arrangement which meant without a manufacturers warranty. This Distributor, as I understand, sold these to my supplier. (under what terms I am not aware).

My supplier has now offered to take these units back and offer a full refund along with my return costs.

I will be left in the same position as I started - BUT here's the kicker. For me to get replacements will mean I have to pay nearly £ 100 more per unit, this being due to a shortage of supply of these units. The (worldwide) shortage being caused by floods in Thailand.

Can I insist on the supplier providing me with what I ordered, at his own additional cost. Or do I have to accept his full refund and have to absorb the additional cost?

I do not believe it was it was fraudulent misrepresentation, Difficult to prove.

 

[Clarkmans]

If they have breached the contract then you can potenially claim your losses from them which will be the replacement costs, rather than the original contract price. You will need to check their terms and conditions in case they have limited their liability so that these extra costs cannot be recovered.

This would mean that where you have ordered a product and as a result of it being faulty you lose business/money then you can potentially claim the costs of replacing the item as well as the loss of profit. This is why it is always a good idea to have terms and conditions restricting your liability so that if something goes wrong you do not become liable for other costs!

Only a consumer can request a repair or replacement however if you are able to claim your additional losses from them they may agree to provide replacements.

I hope this helps.

 

[LicensedToTrade]

Only a consumer can request a repair or replacement however if you are able to claim your additional losses from them they may agree to provide replacements.

Not sure that is correct. I believe the choice of repair, replace or refund is down to the retailer in the case of a consumer transaction.

 

[IANL]

Thank you Clare.

LicensedtoTrade. This is a B2B Ltd co to Ltd Co. DO these rules apply. Is a company treated as a 'consumer' in these types of deals.?

 

[IANL]

FYI applicable clauses are:-


8. No Responsibility To Sell Mispriced Products Or Services
xxxxxxxxxxxxxxxxxxxxx shall have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund, or containing any other incorrect information or typographical errors. xxxxxxxxxxxxxx has the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, xxxxxxxxxxxxxxxxx will issue a credit to your credit card account in the amount of the charge.


10. Service and Support for Goods Sold.
All requests for technical service and support should be made directly to the manufacturer in accordance with their terms and conditions.

13. Limitation of Liability
YOUR USE OF THE SITE, OF ANY PRODUCTS AND/OR SERVICES OFFERED ON OR IN CONNECTION WITH THE SITE AND/OR THE USE OF ANY CONTENT AND/OR DIGITAL DOWNLOADS IS AT YOUR OWN RISK. IN PROVIDING ACCESS TO THE SITE AND SUPPLYING GOODS OR SERVICES WE AGREE TO EXERCISE REASONABLE CARE AND SKILL. HOWEVER, NEITHER xxxxxxxxxxxx, ITS LICENSORS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES WILL BE LIABLE FOR ANY LOSSES WHATSOEVER ARISING OUT OF YOUR USE OF THE SITE OR PURCHASE OF GOODS OR SERVICES, OTHER THAN THOSE WHICH RESULT FROM ANY FAULT, BREACH OF THESE TERMS OF USE, FRAUD, NEGILIGENCE, FRAUDULENT MISREPRESENTATION ON THE PART OF GADGET GIRLL AND WHICH ARE FORESEEABLE BY THE PARTIES, OR IN THE EVENT OF DEATH OR PERSONAL INJURY.

 

[Clarkmans]

Not sure that is correct. I believe the choice of repair, replace or refund is down to the retailer in the case of a consumer transaction.

Hi

A consumer can demand a repair or replacement under S48B of Sales of Goods Act 1979. The seller can only refuse this if it is dispropotionate.

If it is disproportionate then a consumer can ask for a refund or to keep the goods but receive some money back as a price reduction under s.48A of Sales of Goods Act 1979.

A consumer has a lot of rights and if the goods are sold by distance then they have further rights in addition to the above!

In this case the buyer was a business and so these rights do not apply.

 

[Clarkmans]

Thank you Clare.

LicensedtoTrade. This is a B2B Ltd co to Ltd Co. DO these rules apply. Is a company treated as a 'consumer' in these types of deals.?

If you purchased it for your business then you will not get the same rights as a consumer.

In relation to the terms on the website they do not appear to restrict the claim you want to make and so I suggest you write back to them advising them that they have breached the contract by providing a faulty item and that the cost of you finding a replacement is £x and you will pursue them for your additional losses. You can then offer them an alternative of supplying you with the new product and see what they say. Hopefully you will be able to reach some agreement with them as it will be hassle for both of you if this has to go through the court.