Consumer Rights Question

Skyuser

I had a post in the mobiles section but they must be asleep over there.

Basically, I bought a V3X phone yesterday. Got home and checked it all out. When I play any video including recorded video, it's all fuzzy and lines going through, preventing me from viewing it.

Brought it back to shop today and she said she would send it off to god knows where on Tuesday and it would take such a time to come back, I wasn't even listening to the idiot. I said I want either a refund or another phone and told her that I saw all the ads on tv saying if your not happy about it bring it back.
But she kept saying no ALL THE TIME! What could I do like?

So Question, Am I entitled to replacement or refund or do I have to do without a phone for 2 weeks while its sent off.

I searched up this :

If the goods do not comply with the above criteria?

The consumer may be entitled to a;

· Repair

· Replacement, or,

· Refund

She offered repair....BUT

What if the consumer is not happy with the seller's offer?

· The consumer still has the right to request an alternative remedy, and, to take legal action if they are not happy with the seller's final offer.

· A case can be taken through the Small Claims Court for amounts up to and including €2,000. The application fee for the Small Claims Court is €15. However, it should be borne in mind that if the seller has made an offer to the consumer, this will most likely be taken into account by the Court.

Ruu_Old

Sometimes they might give you a backup phone (depends on the shop). Did you ask for the manager?

johnp

You should threaten small claims and see what the response is.

Spocker

skyuser wrote:

Am I entitled to replacement or refund or do I have to do without a phone for 2 weeks while its sent off.

You'll have to wait. You are entitled to a repair, replacement or refund but the retailer only has to offer them to you in that order ... they have rights too you know....:rolleyes:

nesf

Moved to Consumer Issues.

Thirdfox

Like Spocker said repair, replacement, refund in that order. Legally I think they are in the clear but if they are nice, want your custom again etc. then perhaps you could persuade them to give you a refund.

(Not legal advice as per the disclaimer)

maidhc

Spocker wrote:

You'll have to wait. You are entitled to a repair, replacement or refund but the retailer only has to offer them to you in that order ... they have rights too you know....:rolleyes:

Entirely wrong. An EU directive specifies this, but the Sale of Goods and Supply of Services Act also applies and this allows the right to reject the goods and rescind the contract.

So yes you are entitled to a refund...

Thirdfox

Really? I had always assumed the Sale of Goods Act (1980, found here for those who are interested: Here )

See specifically s. 17.2:
(2) Where, however, the seller, being a retailer, gives the buyer his own written undertaking that he will service, repair or otherwise deal with the goods following purchase, it shall be presumed, unless the contrary is proved, that he has not made himself liable to the buyer under the guarantee so delivered.

Could you clarify where does it state that goods can be rejected and a refund must be given?

Also any links to the directive?

Spocker

maidhc wrote:

Entirely wrong.

Not quite.. from the Office of the Director of Consumer Affairs

OCDA wrote:

If the reason for the complaint is not trivial and is discovered soon after purchase, the consumer is entitled to reject the goods and insist on a full refund provided prompt action is action is taken.
.
.
.
There are no hard and fast rules as each case has to be considered on its merits.

As the info from the Sale of Goods Act isn't clear, the onus is then on the consumer to prove the "not trivial" clause...

Without knowing exactly what was said between the OP and the girl in the shop all we can do is generalise. I appreciate that the girl said "no" to all of the OP's questions, but the general rule that most retailers will follow is what I mentioned in my first post.

maidhc

Spocker wrote:

As the info from the Sale of Goods Act isn't clear, the onus is then on the consumer to prove the "not trivial" clause...

No, it is crystal. What Thirdfox referred to is a provision which deals with guarantees. The right to reject exists independently of any guarantee. The provision in question is s.10 of the SoGSSA insofar as it amends s14 of the SOGA 1893. I quote:

(2) Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition—

( a ) as regards defects specifically drawn to the buyer's attention before the contract is made, or

( b ) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed.

Anyone who studied contract law will be aware breach of a condition allows a person to rescind the contract at their option.

If the phone is broken, as it appears to be judging by the fact the shop owner agreed to send it for repair, as well as the fact it is unused, it is suggested we have a textbook case of "unmerchantability".

The directive is here, Art 3 is the interesting one: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0044:EN:HTML

Thirdfox

I haven't studied contract law so I'll defer to your judgement...

but looking at Art. 3 of the Directive it seems like provision 5 states:
5. The consumer may require an appropriate reduction of the price or have the contract rescinded:

- if the consumer is entitled to neither repair nor replacement, or

- if the seller has not completed the remedy within a reasonable time, or

- if the seller has not completed the remedy without significant inconvenience to the consumer.

---

It seems like that there has to be no offer of repair or replacement before you can rescind a contract...

edit: also provision 3:
3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.

Spocker

I ain't no legal eagle either, so I'll bow to maidhc's superior knowledge of contract law on this one.

Thirdfox

In regards to the merchantable quality provision I don't see where it is stated that if unmerchantable then you are automatically entitled to a refund (perhaps it is a common law precedent?)

gerrycollins

im a retailer but not of mobiles and I have to offer the customer either of the 3 options as mentioned above repair,replace or refund but at my discretion but usually after discussion with the customer

this is usually determined by the supplier,where an agreement is reached between supplier and retailer but mostly i offer refund as i see repair as a slow option to an easy solution,

the law states that the customer must be offered a remedy(repair,replace or refund) but in no order but the order in which they are mentioned are normal but totally at the retailers discression and the OP more than likely will have to seek the manager to overrule a shop policy which i suspect she is just quoting

the small claims court is usually an option where all else fails so keep records of everything

maidhc

Thirdfox wrote:

It seems like that there has to be no offer of repair or replacement before you can rescind a contract...

You are right, that is exactly what the directive says. It is less useful than the Irish law as a result in this circumstance. However on the flip side it gives very useful rights to repair etc for up to 2 years, by comparison you can lose your right to reject in Irish law very quickly.

The reason you can reject under Irish law is the use of the word "condition". In contract law there are three types of terms, condtions, warranties, and innominate terms. Breach of a condition allows you reject, a warranty only sounds in damages and the third one lies between the two!

One problem for the OP though is if he does not get what he wants he will be much longer than 2 weeks waiting to get a new phone through the legal system. My experience is the small claims can take about 12 mths if the supplier procrastinates. Mind you I thought the big mobiles companies (vfone and o2) operated very reasonable returns policies; o2 definately give a new phone without asking questions if a fault arises within 30 days.

Thirdfox

Ah, cool, thanks for clearing that up! Learn something new everyday!

Random

Most shops allow you an exchange once it's visible within the first 2 or 3 weeks ...

As for the person who suggests threatening the small claims without speaking with the manager first -where do you expect to get? People working in chain (assuming it's carphone, 3g or voda...) shops couldn't care less and will just laugh at you.

Skyuser

I don't know what to do, the fat cow in the shop just won't budge, she's a right bitch.

failsafe

Skyuser wrote:

I don't know what to do, the fat cow in the shop just won't budge, she's a right bitch.

She's just an employee following company policy. Bit harsh.

maidhc

Skyuser wrote:

I don't know what to do, the fat cow in the shop just won't budge, she's a right bitch.

Your attitude might be a lot of your problem. You need to be firm, but courtious and polite. Don't throw a tantrum like a 5 year old that lost his sweets but just ask to speak to a manager, and if this is denied ask why.

dahamsta

Remote viewing is a big hobby around here these days I see!

Sleipnir

Well, the argument being pub forward saying "they can repair it" just doesn't wash with me I'm afraid.
I mean, you paid for a new phone and you're going to end up with one which has been 'repaired?' Does that mean that a shop can sell you a defective phone which was returned by another customer and then just tell you to have it repaired? They should have given you another brand new phone without question.

Write to the shop outlining your complaint and stating the name of the shop assistant. Explain that unless you get a brand new phone you will be going to the small claims court.

cabla

consumer information act 1980 stats that goods must be of merchantable quality and as described. Obviously this shop doesnt understand this, and you are entitled to a repair, refund or a swap. Maybe they had small print somewhere on the receipt. But you would certaintly have a claim on the small claims court, could be worth your while

Pythia

Was the fault evident in store?
The answer really dictates what should happen next.

miju

also bear in mind that the shop has the right to determine the fault and cause off it(or indeed if there was one) before offering refund / replacement, something alot of people don't seem to get

maidhc wrote:

Your attitude might be a lot of your problem. You need to be firm, but courtious and polite. Don't throw a tantrum like a 5 year old that lost his sweets but just ask to speak to a manager, and if this is denied ask why.

very true maid, it's funny how many aplpiances a day i refuse to exchange / refund because the person is being like above (whats even funnier is the amount of customers i talk to are suddenly "experts" on consumer law), though i will eventually exchange it i'll leave the customer for a day or two tearing their hair out first,

it's nice to be nice and the firm but subtle approach usually works so much better than roaring yer head off ;-)

Sleipnir wrote:

Write to the shop outlining your complaint and stating the name of the shop assistant. Explain that unless you get a brand new phone you will be going to the small claims court.

don't imagine writing a letter will get the OP anywhere , especially has the store has offered a form of remedy and besides small claims will take longer than the repair will take