Easyway Guide To Consumer Law

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• Publisher: Straightforward Publishing Digital
• Year: 2012
• Print ISBN: 9781847162281
• eBook ISBN: 9781847162762

Consumer rights continually evolve and change and this book lays out all of the changes up to 2012 in a clear and concise way. Areas such as legislation covering the use of credit cards, and credit generally, plus distance selling regulations, all areas that have been affected by the introduction of European legislation, are covered in depth along with the main body of consumer law. A Guide to Consumer Law is a clear, concise and illuminating book which all categories of reader will find invaluable.

Chapter 1

Consumer Protection Generally

 

Consumers are protected by both civil and criminal law. As we shall see below, the general law of contract gives some protection, especially from misrepresentation. There are special rules for consumer contracts, including:

• Contracts for buying goods

• Contracts for services

• Distance selling

• Other areas such as package holidays, insurance, food and finance

The tort of negligence gives limited protection where the consumer has no contractual rights. In addition, there is protection from defective goods under the Consumer Protection Act 1987. The criminal law also affords some protection against such matters as trade descriptions.

The law of contract

All transactions between consumers and suppliers are based on the law of contract. Every exchange of goods is an agreement between buyer and seller.

It therefore follows that underlying each exchange is an area of law which defines the rights and obligations of both buyer and seller. The purchaser and the person who sells goods and services are not free to do exactly as they wish after the sale or, indeed, make up the rules as they go along.

The major area of law which supports and assists consumers is the Sale of Goods Act 1979, as amended by the Sale and Supply of Goods Act 1994. This Act governs all transactions where goods are transferred for a price.

There are, however, certain situations where a consumer will not be covered by the Sale of Goods Act. As was mentioned, this Act covers transactions where a sum of money is involved, where a price has been set for the goods. In some circumstances you may swap or exchange goods. In this case, the transaction will be governed by the Supply of Goods and Services Act 1982.

There are a number of transactions which may involve a combination of swap and cash, such as the trading-in of a product against a newer model. If an amount of cash is involved, no matter how small, then the Sale of Goods Act 1979 will apply.

The contract of sale

There are what is known as “express and implied” conditions governing any contract, not just consumer contracts. Express terms of the contract are those agreed by the buyer and seller. However, once it has been determined that the Sale of Goods Act covers the transaction there are certain conditions implied into the sale by the Act. These conditions cannot be circumvented by the seller.

In every contract for the Sale of Goods, the 1979 Act states that where there is a sale of goods by description there is simultaneously an implied condition that the goods sold will match their description. In other words, the seller must sell you what has been described in the advertising. Nothing more and nothing less will suffice.

Section 13 of the Sale of Goods Act applies to all sales, whether by private individuals or business. Anyone who sells a good to another is covered. Section 13 applies to all goods no matter what the purchasing situation. Just because, for example, the goods were on open display and the potential buyer can see what is on offer, does not mean that sale by description does not apply A tin of fruit might contain a different fruit to what is described in the tin or a sweater might in fact not be 100 per cent wool as it says on the label.

The golden rule which underpins the Act is that the description of the product on offer must match the product sold. As television shopping assumes greater prominence, in the form of television shopper channels, this Act will assume greater importance. No longer will there be the direct face-to-face contact between the buyer and the seller, only a telephone line. The process of challenging the product when you eventually receive it will be more long winded, as it often is with mail order of whatever description. However, consumers will need to be aware of their rights in the probable instance of receiving goods that do not correspond to what was requested. We will be discussing distance selling and the Distance Selling Regulations 2000 further on in this book.

There may be cases where the consumer purchases goods and relies on a sample to make a choice. This is quite often the case when choosing fabric for furnishings or carpets. The Sale of Goods Act also covers samples and states that the goods must correspond with the description of those goods and not just the sample shown.

This is very important for those who feel let down by goods received by way of choosing from samples and wish to return those goods. Remember THE SALE OF GOODS ACT 1979 SECTION 13 is the Act that you should refer to if you experience problems in this area.

Your rights under this section entitle you to reject the goods and obtain a refund. It is not at the discretion of the seller, but your right.

In addition to the goods not matching up to the description, section 30 of the Act also provides a remedy to the consumer if quantity of goods is not that which was requested or advertised. Quite simply, because a different amount is supplied then there has been a breach of description.

If the consumer receives a mixture of goods, for example, two saucepans ordered but the third different to the one described then the right exists to reject the goods. There is no right for the consumer to keep the goods. They must be returned if rejected.

Chapter 2

Defective Goods

 

In the previous chapter we looked at consumer rights generally and pointed out the importance of the Sale of Goods Act 1979, as amended. In this chapter we will look at the area of law protecting consumers when a good or service supplied is defective.

If you bought the goods on or after March 2003, you can ask the seller to replace or repair the goods free of charge if they are faulty. If you do this within six months of receiving the goods, and it is reasonable to expect them to have lasted for the period of time that you have had them, it will be assumed that the problem existed when you bought the goods, unless the seller can demonstrate otherwise. However, you can still ask for a replacement or repair for up to six years from the date that you purchased the goods, if it is reasonable to assume that they should have lasted that long. Obviously, common sense applies here and the longer that you have the goods the more difficult it will be to prove that there was a problem at the time of purchase.

Notwithstanding the above, and sometimes the seller will make life difficult, even going so far as to refuse to exchange goods or refund money.

This is a blatant breach of the law and of the rights of the consumer. Again, it is necessary to be able to quote the law and show that you mean business.

There are many examples of defective goods. This can range from the washing machine or fridge to the item of clothing that either has a defect or does not last the first wash.

The Sale of Goods Act 1979 covers these situations. The seller has to be an established business however. It is most important to understand this point. The Act does not cover private sales. However, the purchaser can be business or private. There is no distinction here.

Goods sold in the course of business must be what is known as “of merchantable quality’. Section 14 of the Sale of Goods Act 1979 defines this. Basically, goods are of a merchantable quality if they are as fit for the purpose for which goods of that kind are commonly bought. In other words, the good must be the same high quality as other goods of a similar kind. If they are not then they are defective.

The price of a good is of significant importance when considering the notion of merchantable quality. A product may be soiled in some way and not achieve the required standard. However, the actual cost of the good is of importance.

Sometimes you buy a good, find that it is defective, take it back and are told by the salesman that it can be repaired quite easily. What is your position then? The position is that you do not have to accept a repair to the item but can demand an exchange or refund. However, there will be cases where the repairing of an item is the only way forward from a practical point of view. This is quite reasonable in the circumstances.

Sometimes, and this is quite common, a guarantee will be given with a product. This gives the consumer an automatic right to a replacement if a good is defective. Guarantees and warranties are discussed further on in this book.

The situation is slightly different when the consumer purchases a second hand item.

The same condition applies as to new goods but obviously age and condition of the item have to be taken into account and the buyer should realise that there is a greater risk of a defect. However, the Sale of Goods Act still applies in the case of second hand goods.

There is however, one proviso here. That is that the Sale of Goods Act says that goods must be of merchantable quality unless the defect is pointed out to the buyer by the seller. Examination of the goods, and the acceptance of those goods provides a get out for many sellers.

This situation can be awkward as many buyers are keen to examine anything they buy. If you miss a defect in a good then the seller has the right to say that you should have noticed the defect. In many cases, of course, the defect may not be readily apparent. If you do examine goods before purchase then it is highly advisable to check thoroughly before acceptance.

The Sale of Goods Act section 14 also governs what is known as “fitness of purpose”. Fitness of purpose quite simply means that the goods purchased must be reasonably fit for the purpose for which they are made. For example, a purchase of a dishwashing machine would lead us to believe that we are buying something that can wash dishes. If this is not the case then the consumer has every right to return the goods.

There are examples here, though, where the buyer cannot demand recompense from the seller if he has not relied on the skill and judgement of the seller. A typical example may be where the buyer goes into a shop and demands something that he assumes is compatible with something else, for example, a printer which he asks for by name, receives it and subsequently finds that it is not fit for the purpose. The key is to ask as many questions as possible before purchasing in order to give the seller as much information as is needed to ensure that the good that he is selling is the correct good.

Buyers of goods have to understand the nature and consequences of acceptance of goods. The Sale of Goods Act sections 34 and 35 deals with acceptance. Section 35 is very important. Basically, if a buyer accepts goods then any damages payable on subsequently discovering a problem will be affected. Acceptance of a good or goods is recognised to occur in a number of ways. One such way is by intimation. This can occur when a buyer or business does not inspect goods, signs for them and only after discovers problems. There are acts after delivery which are not consistent with the sellers ownership. This is usually more important in commercial rather than straightforward consumer cases. If the buyer retains the goods beyond what is considered a reasonable time then this can constitute acceptance and can undermine the case for compensation.

It is true to say that most consumers would not look for damages if the good that they have purchased is defective in one way or another. Usually the act of replacing or repairing a good is seen as fair and equitable.

Chapter 3

Other Consumer Transactions

In chapter two we looked at the law and defective goods, transactions between seller and buyer which are covered by the Sale of Goods Act. However, there are transactions which are not covered by the Act, simply because there is no “transfer of property for a monetary consideration called a price”.

An example may be the purchase of a good under a hire purchase agreement. We will be discussing this in more depth later. However, purchase of goods in this way constitutes “bailment”. In other words, the goods are owned by the hire purchase company until the last payment is made. If the good is defective in this case, what is the remedy? Hire purchase transactions of this kind are covered by the Supply of Goods (implied terms) Act 1973. Sections 9 and 10 are exactly the same as sections 13 and 14 of the Sale of Goods Act and therefore the remedy lies here.

There is another form of consumer transaction which needs to be understood. This is known as the conditional sale transaction. This is where a buyer of a good, a typical example being a car, may have the car for six months and have constant trouble. If the buyer experiences ongoing trouble and the garage is alerted then he will be entitled to a refund of his money.

There is an important point to be made here. That is the buyers attitude and whether or not he accepts the good even though it is defective. Two notions exist - acceptance and affirmation. What this means is that acceptance will occur when the buyer accepts delivery. However, affirmation can only occur when the defect is known, with time starting to run from that point. If the buyer simply carries on driving the car, or using the good even though there is knowledge of the defect then he is accepting the good and undermining his right to return or seek compensation. However, if the buyer does not affirm, i.e., continually lets the garage know that there has been problems, then he is not affirming the contract and will be entitled to a refund.

Be very careful here. Always assert your right, do not be afraid of complaining and keep a record of the number of times that you have complained.

Use of materials when carrying out repairs

Responsibility, or liability, for parts under a contract which is for works and materials is regulated by sections 3 and 4 of part 1 of the Supply of Goods and Services Act 1973. If a remedy is needed for the supply of parts which are either defective or are not those which are supposed to have been used then it is to this Act that you must turn. As before, the notion of affirmation and acceptance is of paramount importance.

When it comes to the service element of a contract, as opposed to the materials element, then it is to section 13 of the Supply of Goods and Services that you must turn. Section 13 states that work must be carried out with reasonable care and skill.

There is one famous legal case which tends to set the standard in this area. This case was Bolam v Friern Hospital in 1957. This involved the medical profession and the issue was deciding whether a doctor is liable for negligence and comparisons with a so-called “average doctor”. The connection here is that if you are complaining about standards of work then you would need to demonstrate that the average garage could have carried out the work to a higher standard.

There are other terms implied into a service contract. Section 14 implies that the business doing the servicing must carry it out within a reasonable time. This is where there are no express terms in ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1. Consumer Protection Generally
• 2. Defective Goods
• 3. Other Consumer Transactions
• 4. Guarantees and Warranties
• 5. Denying Liability For Products
• 6. Unsolicited Goods
• 7. Purchasing Goods at Home
• 8. Consumers and Credit
• 9. Withdrawal from an agreement
• 10. Defective goods purchased on credit
• 11. Trade Descriptions
• 12. Unsafe Goods
• 13. Package Holidays
• 14. Food Safety
• 15. Controlling of prices
• 16. Consumer Remedies
• 17. Consumer Issues Generally
• 18. Consumer Law in Scotland
• Sample letters of complaint
• Useful Addresses
• Index