Faulty, high(ish) value item - postage/collection issue

[eshrules]

Morning fellow Hexites,

I've rarely started posts on here, as I'm more of a reader than a typer but I'm hoping some of the law bofs can help me out here.

if it's in the wrong section, please could a mod move it

It's a bit of a long one, so grab a brew and some popcorn....

On the 1st May, I bought an engine crane. It was bought from eBay, via a buy it now, from a ltd company trading as a business. The payment was made via paypal.

the item arrived on the 5th May, paint scraped and rusting in several places. It was missing quite a few bolts (enough to dictate it would not assemble) and a pair of safety chains to hold the (10/15 kg each) legs up once folded.

I contacted the seller, to request the spares needed and mentioned the rust, but agreed to ignore this should the parts be dispatched.

I received parts on the 7th May. The spare parts only contained bolts needed, not the 2 rather important safety chains.

I contacted the seller, primarily by phone, to discuss this and request the chains be sent. I was told to 'chill out and send an email'. Which I did.

Cue several days of emails backwards and forwards and several confusing statements from the seller (such as the sale of 23,000 units meaning there can not be a fault).

The seller has refused to accept there is a fault with the item, stating he will not send out these chains listed/required and as a result, I requested the item be returned for a refund.

The point of contention arises in regards to the return.

The seller states it is my responsibility and should be at my expense, to return the faulty item.

I've gone through the process of running an eBay dispute, then a paypal dispute, both of which the seller has closed and offered a refund, but without offering to collect or pay return postage. Neither eBay or paypal wish to assist, with the latter telling me I have to pay for the return.

The reason I'm refusing to pay is 1)the item is faulty and 2) it'll cost the best part of £50 to have this returned.

Consumer Direct have advised me he's in breach of the sale of goods act and have given me the relevant verse to quote, in a bid to ensure I'm not out of pocket.

Any input on this would be greatly appreciate guys

[jim]

Personal opinion:

I'd say that Consumer Direct are correct. Ebay and Paypal don't like to get involved with this sort of thing, and I seem to recollect that they like to pretend the SoGA doesn't apply to eBay sales - I would say that in this instance it does, because it's a basic business transaction... you handed cash over to an Ltd company, and they provided you with a product. We're not talking a person to person classifieds sale, or even an auction.

Ultimately, you've bought a product from a business and it is unfit for purpose. Whether these people will give up and agree to pay for collection prior to arriving in court, that's another question altogether.

[finlay666]

Tell the seller they are responsible for postage/courier payments and if they do not arrange collection at a time convenient to you (remember SOGA stats the buyer must not be needlessly put out or inconvenienced) you will dispose of it how you see fit and still require a refund under their responsibilities under the SOGA

EDIT: Did you pay on a credit card? If so involve the card company (even if it was under the statutory amount many usually help out in order to provide good customer service)

[jim]

(even if it was under the statutory amount many usually help out in order to provide good customer service)

Visa Chargeback is the one to research in this instance.

[peterb]

Tell the seller they are responsible for postage/courier payments and if they do not arrange collection at a time convenient to you (remember SOGA stats the buyer must not be needlessly put out or inconvenienced) you will dispose of it how you see fit and still require a refund under their responsibilities under the SOGA

It sounds as if they are prepared to flout the SOGA on the grounds that they are unlik3ely to be held to account - unless the OP pusues it through the County Court fast track system (what used to be the Small Claims Court IIRC) However the threat of that - or a solicitors letter might just persuade them to pay up.

EDIT: Did you pay on a credit card? If so involve the card company (even if it was under the statutory amount many usually help out in order to provide good customer service)

He paid by paypal. Even if the paypal amount was debited to a credit card, I doubt there would be a case for claiming under the Consumer Credit act. Others have reported more success with teh Ebay disputes process than the Paypal, so that might also be course worth pursuing.

[finlay666]

He paid by paypal. Even if the paypal amount was debited to a credit card, I doubt there would be a case for claiming under the Consumer Credit act. Others have reported more success with teh Ebay disputes process than the Paypal, so that might also be course worth pursuing.

I'm aware he paid by paypal, but it's always worth trying every avenue of help available to you

[petercook7]

companies just keep doing these, make you sick.

[jadamso]

I've been working in law for many years now and so should be able to advise to you.
Main points to note:

Was it a business to business purchase? (I don't know what the hell an engine crane is)
If not, as it was a 'Buy It Now' item rather than an auction Sales of Goods Act 1979 will apply.
For the first 6 months burden of proving that fault is not liability of the seller rests with the seller.
You've acted quickly and so no issue of acceptance (just by asking them to send replacement parts won't affect that as you're giving them an opportunity to provide a remedy i.e. replacement. If replacement fails (i.e. doesn't solve issue) then onus is on seller to offer an alternative remedy.
As far as I am aware all Paypal are is a merchant service who process transactions: if you have paid using credit card i.e. if you have been given credit by your card provider and it is 100 pound equally liable.
You could also try going under Distance Selling Rights in the alternative which gives you a 7 working day cooling-off period in any case as well as putting burden of returning items on the seller.

Tell the seller they are responsible for postage/courier payments and if they do not arrange collection at a time convenient to you (remember SOGA stats the buyer must not be needlessly put out or inconvenienced) you will dispose of it how you see fit and still require a refund under their responsibilities under the SOGA

Err..No it doesn't actually.

Even if the paypal amount was debited to a credit card, I doubt there would be a case for claiming under the Consumer Credit act.

Provided money has been taken straight out of your account it's credit.

Any clarification needed post me

J.

P.S. Not having a go anyone here but i do know what i am talking about.

[eshrules]

quotes are slightly out of sync, but I'm trying to keep the relevant parts together

Visa Chargeback is the one to research in this instance.

He paid by paypal. Even if the paypal amount was debited to a credit card, I doubt there would be a case for claiming under the Consumer Credit act. Others have reported more success with teh Ebay disputes process than the Paypal, so that might also be course worth pursuing.

I'd already begun to look into issuing a chargeback. The issue isn't getting the refund sadly, the seller has already agreed to that, pending the return of the item. Clearly, as it's a 2m long, 75kg item, sending it back at my own expense isn't an option and therein lies the dispute.

Halifax have advised me that a chargeback would normally only be issued if I was unable to obtain a refund. It all sounds a bit vague to me but I think I understand what they mean.

It sounds as if they are prepared to flout the SOGA on the grounds that they are unlik3ely to be held to account - unless the OP pusues it through the County Court fast track system (what used to be the Small Claims Court IIRC) However the threat of that - or a solicitors letter might just persuade them to pay up.

It'll be the first time I've had to pursue a matter through the County Court/small claims, but if it comes to it I will. The seller has (sadly) turned this into a case of ensuring my rights to a fair refund, are upheld. I am honestly bemused that he is attempting to negate my complaint with his factoid of 23,000 units sold without a complaint (which I doubt).

I've been working in law for many years now and so should be able to advise to you.
Main points to note:

Was it a business to business purchase? (I don't know what the hell an engine crane is)
If not, as it was a 'Buy It Now' item rather than an auction Sales of Goods Act 1979 will apply.
For the first 6 months burden of proving that fault is not liability of the seller rests with the seller.
You've acted quickly and so no issue of acceptance (just by asking them to send replacement parts won't affect that as you're giving them an opportunity to provide a remedy i.e. replacement. If replacement fails (i.e. doesn't solve issue) then onus is on seller to offer an alternative remedy.
As far as I am aware all Paypal are is a merchant service who process transactions: if you have paid using credit card i.e. if you have been given credit by your card provider and it is 100 pound equally liable.
You could also try going under Distance Selling Rights in the alternative which gives you a 7 working day cooling-off period in any case as well as putting burden of returning items on the seller.


P.S. Not having a go anyone here but i do know what i am talking about.

I'll try to answer as best as I can :

it was a vendor>consumer sale, I'm not a business, the engine crane is a medium sized crane used to hoist engines and gearboxes from cars.

it was on a buy it now purchase, which CD explained made a world of difference to my rights (as in, SOGA applies)

your 6 months thing lost me bud?

Throughout our emails I've given the seller opportunity to send replacement parts, replace the item or refund. He seems to be confused as to whether the instructions are printed wrong, or the contents of the box is wrong, all he appears to support this with are his astronomical sales figures. All I wanted was a safe engine crane, that wasn't rusting on the day I received it.

My understanding of the DSR was that if you 'change your mind' and wish to cancel within those 7 days, the buyer then becomes liable for the return postage and undertakes a duty of care until it's returned?

all help's greatly appreciated guys

[jim]

your 6 months thing lost me bud?

My understanding of the DSR was that if you 'change your mind' and wish to cancel within those 7 days, the buyer then becomes liable for the return postage and undertakes a duty of care until it's returned?

I don't think 6 months is relevant in the slightest. After 6 months, if the item develops a fault, you have to prove that it was the result of an inherent fault in the manufacturing - i.e. not caused by you. Thing is, this was faulty from day 1 - so there's your proof that it wasn't caused by you. Not an issue.

And the DSR, yeah that's right. Although it appears that you can sort of combine the DSR and the SoGA - so if the item is faulty, and you cancel under the DSR for that reason alone, then they have to refund you everything you paid, as normal. Crucially though, they are responsible for getting the item back again - not you. I'm sure CD would explain that, if you ever wanted to use it. Anyway, in this instance I imagine it's irrelevant since you must've had it longer than 7 days.

[eshrules]

I don't think 6 months is relevant in the slightest. After 6 months, if the item develops a fault, you have to prove that it was the result of an inherent fault in the manufacturing - i.e. not caused by you. Thing is, this was faulty from day 1 - so there's your proof that it wasn't caused by you. Not an issue.

I thought that might be what he was getting at, the wording was a tad confusing

And the DSR, yeah that's right. Although it appears that you can sort of combine the DSR and the SoGA - so if the item is faulty, and you cancel under the DSR for that reason alone, then they have to refund you everything you paid, as normal. Crucially though, they are responsible for getting the item back again - not you. I'm sure CD would explain that, if you ever wanted to use it. Anyway, in this instance I imagine it's irrelevant since you must've had it longer than 7 days.

I was actually using DSR combined with SOGA but CD said to try to avoid using the two acts together, they're not exclusive to each other but there's no need to invoke DSR, as he's breached SOGA that's sufficient on it's own to recover all and any costs.

I've only actually had the item since the 4th/5th May

I've got a letter going off to the seller today, recorded post and he's been given 14 days to respond. I'll update if/when I get a response

p.s. is it you or the other Jim I've bought stuff off?

[Saracen]

....

And the DSR, yeah that's right. Although it appears that you can sort of combine the DSR and the SoGA - so if the item is faulty, and you cancel under the DSR for that reason alone, then they have to refund you everything you paid, as normal. Crucially though, they are responsible for getting the item back again - not you. I'm sure CD would explain that, if you ever wanted to use it. Anyway, in this instance I imagine it's irrelevant since you must've had it longer than 7 days.

Yes, but I'd add to that.

Firstly, the 7 days. It's 7 working days, and starts the day after delivery. That might be enough to make the difference. And by working days, I mean excluding weekends and bank holidays.

It;s also at least 7 working days. It can be up to 3 months and 7 working days. The DSR stipulates that the seller must give certain information to the buyer in writing, and if they don't, then the cancellation time starts either when they do, or after 3 months, so if they never do give it, you get 3 months and 7 days. Eshrules would have to compare what information he was given, and precisely when, to be sure if the cancellation period has expired.

I agree with snooty about the cost of getting goods back under the DSR, too. If you just cancel because you changed your mind, the supplier refunds money paid including the cost of shipping goods to the consumer, but (provided their Y&Cs stipulated it) the consumer pays to ship back unless their is also a right to reject under some other contract term, and that includes implied terms because of other legislation like the SoGA rights.

[Saracen]

.....

your 6 months thing lost me bud?

....

Yoour ability to utterly reject goods under the SoGA has some serious limitations. You must not have "accepted" the goods, and I don't mean accepted delivery. Once you have accepted them which you can do simply by not acting fast enough to reject them (as jadamso mentioned) then you're down to the other remedies the SoGA provides, such as repair, replacement, partial refund, etc. But, you're only entitled to any of those if the goods don't meet SoGA criteria, such as satisfactory quality, fitness for purpose and being as described, etc.

And, critically, if the goods develop a fault after a period, when did the fault occur?

If you buy something and it breaks a few months later, did it break because you abused it, or did it break because there was a weakness in manufacture that existed when you bought it, but just took several months to actually go?

If the fault existed at the time of sale, but simply wasn't visible of obvious, then it's "inherent" in the goods at time of sale, and so you are entitled to the SoGA remedies. For instance, a substandard component that lasted a while, bit not as long as it would be reasonable to expect it should have. On the other hand, if a motor burned out because you did things you were told not to do, then no SoGA liability exists. Suppose your hoist has a maximum load capacity of 30kg, and you've been lifting 50kg engines with it and it burns out or breaks? Are the sellers liable? No, because you went way over the rated capacity. You should have bought a heavier duty unit, made for that load.

But, who has to prove if the goods were inherently faulty at time of sale. This is where the 6 months comes in.

For the first 6 months, the statute provides that the presumption is that if they fail that quickly, they were faulty at time of sale, unless the seller can prove otherwise (such as by an examination from an independent expert). But after 6 months, the burden of proof reverses, and the presumption is that the fault did not exist at time of sale, unless you can prove it did.

In your case, you're way within 6 months, so the burden of proof that the goods did comply with the SoGA requirements lies with the seller. Here's a thought. Suppose the seller has a video of your specific item being packed and sealed, and it shows they included the items you say are missing? Could that prove that they did not omit them? Perhaps. And it's not beyond the wit of people to lie about the nature of a problem with goods. I'm not suggesting you are, not by a long way, and the notion of such video existing is rather fanciful, but the principle remains valid in the general case and I'm sure you see the point. You know the bolts and chains were missing, but they only have your word for it.

That's what his "6 months" point was about.

[eshrules]

brief update on the situation...

under the guidance of consumer direct and having read the above in regards to SoGA, I sent a letter to the concerned company :

Purchase Date - 1st May 2010

Item received - 5th May 2010

Faults first reported - 5th May 2010

I am writing further to our recent communications and the eBay/Paypal dispute.

As per the Sale of goods act 1979 (as amended) the goods received are of unsatisfactory quality. The reasons for this are:



* Item arrived scraped and rusting in several places. Rust will ultimately lead to an undermining of the metal’s strength.
* Item is missing 2 safety chains for legs (part number 25 as per instructions). The absence of these renders the item unsafe and unsuitable for purpose.


As a result of these faults, you are in breach of the Sale of goods act 1979 (as amended) and liable for all losses, damages & costs incurred.


It would be more financially economical for you to arrange collection of this item, as opposed to refunding my return postage.


Please advise, by return, your decision – within 14 days.

Letter was sent on the 15th May, I've received an email this morning :

With regards to your letter about the 1 Ton Crane, can you please advise when you will be home for us to collect them?

that looks like a result to me

just need to take as many pictures of the item as possible and ensure it's well packed before I sent it back, but I'd say that's another victory to chalk up...cheers for all the advice chaps

[eshrules]

rather predictably, the seller appeared to be dragging his feet, refusing to authorise the refund himself. So I had to get a hardcopy POD from their own courier, to show paypal, so that they could authorise it on his behalf





A few words of warning

based on my experience and reading of a few issues others have experienced - I would steer clear of KMSDirect, KMSDistribution, MANtrading or any other of his trading names. He appears to have annoyed a few people, but I firmly believe it will catch up with them sooner or later.

[jim]

Nice one, glad it all worked out in the end

Eshrules 1, Dodgy Crane Man 0