updated on 29 November 2005
QuestionWhat should a business bear in mind when it comes to consumer rights?
A consumer's rights will depend largely on the type of contract he/she has entered, with the most relevant normally being a contract for the sale of goods. This exists where the seller transfers or agrees to transfer the property in goods to the buyer for money. If this type of contract exists, it will be subject to the Sale of Goods Act 1979 (as amended). This act is impacted upon by a number of other pieces of primary and secondary legislation, including:
Sale by Description
Usually, goods bought in a shop will constitute a sale by description. Wherever items or goods under such a contract are bought they must 'conform to contract'. There are two aspects to this: first, the express terms of the contract must conform (ie, the goods must be as described), and second, the implied terms of the contract must conform (ie, the goods must be fit for their purpose and of satisfactory quality). Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description. Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety.
It is important to remember that the seller, not the manufacturer, is responsible if goods do not conform to contract. This means that if a consumer buys faulty goods from a shop, staff should not simply tell him/her to contact the manufacturer.
Acceptance and Affirmation
If goods do not conform to contract, the purchaser can request his/her money back, provided he/she has not already accepted or affirmed the contract. The buyer is deemed to have accepted the goods if he/she (i) intimates to the seller that he/she has accepted them when the goods are delivered, or (ii) does any act in relation to them that is inconsistent with the ownership of the seller. Affirming the contract is a slightly different concept, but arises in broadly similar situations.
One way in which it is possible to accept the goods or affirm the contract is by failing to return the goods within a reasonable time. This is not defined in the legislation, so common sense dictates what this means in each individual situation.
Another way of accepting the goods is by doing something to them to prevent their being returned in the same condition in which they were purchased. Thus, if a consumer bought a car and drove 20,000 miles in it, he/she would probably be deemed to have accepted the goods!
Sometimes repair/replacement is not possible or too costly, through no fault of the consumer. The consumer can then seek a partial refund, if he/she has had some benefit from the goods, or a full refund if the fault has meant that no benefit has been enjoyed.
A consumer can demand repair, replacement or damages (usually the cost of a repair or replacement) for up to six years after purchase. However, this does not mean all goods have to last six years! This is simply the limit for making a claim in respect of a fault that was present at the time of sale. Clearly, you couldn't bring back a six-year-old packet of crisps and complain that they were mouldy!
Consumers have the right to buy goods that are:
A consumer has no real grounds for a complaint if he/she:
If a product that was faulty at the time of sale is returned to the retailer, the consumer is legally entitled to a full refund, a reasonable amount of compensation, or a repair or replacement. A guarantee or warranty will grant additional rights.
Nick McDonald is a second-year trainee in Browne Jacobson's Insolvency Department.