Bad experience with Oyyy.co.uk

[fat jez]

Hi All,

OK, here's the deal. I bought a nice, shiny BenQ FP241W from Oyyy.co.uk last Wednesday, it was delivered last Thursday. It has a really annoying problem - it won't hold synch with the picture and keeps flashing in and out. See this clip on You Tube for somebody else who has the same problem.

Having tried reinstalling drivers, Vista and tried 3 different DVI cables, I came to the conclusion there was a problem and did some googling, which is when I found the clip I linked to above. It seems this is not an uncommon problem and there is no known cure.

So I emailed Oyyy today and reported the problem. Back came a reply telling me to phone BenQ. Now, BenQ have an on-site replacement scheme and will replace it next day, but this is a brand new monitor and I don't fancy a refurb as a replacement. In any case, I'm sure my contract is with Oyyy and not BenQ and therefore they have to sort it.

So I phoned trading standards where a nice man told me that my suspicions were correct, that Oyyy do have to accept responsibility under the Sale of Goods Act and offer a refund or a replacement, providing the problem has occurred in a reasonable period of time (I think 5 days is reasonable). If that's not enough, the Distance Selling regulations state I can return goods within 7 days, starting from the day after I receive them, providing I am not happy with them. The terms on Oyyy's site tell me I can only do this providing the goods have not been opened and used, which clearly mine have. However, Mr Trading Standards tells me this only applies to software, music, DVD's, video's, etc. In other words, items which can be copied.

To cut a long story short, I emailed this back to Oyyy and guess what? Silence. They have until lunchtime tomorrow to respond telling me when they are going to pick up my faulty monitor and issue a refund, or I go back to Trading Standards again, as they are (IMHO) blatantly ignoring consumer law and I'm in the mood for a fight! Rest assured if this is not resolved to my satisfaction, I'll be posting my experiences to every consumer review website I can find!

rant over.

Cheers,
Stephen

[notsobig]

I'm also in the process of returning my monitor myself so I know how you feel. I think what you have written there is absolutely correct(I did my study too) so don't give up and teach them a lesson or two! So much hassle for a monitor... but I hope you'll get what you paid for in the end.

[GoNz0]

with dell you can tell them within the 1st month (or more) that you refuse to accept there refurb and want a new monitor. it takes a couple of days longer, and may not involve doorstep swap, but its an option to try with benq

[Saracen]

......

So I emailed Oyyy today and reported the problem. Back came a reply telling me to phone BenQ. Now, BenQ have an on-site replacement scheme and will replace it next day, but this is a brand new monitor and I don't fancy a refurb as a replacement. In any case, I'm sure my contract is with Oyyy and not BenQ and therefore they have to sort it.

So I phoned trading standards where a nice man told me that my suspicions were correct, that Oyyy do have to accept responsibility under the Sale of Goods Act and offer a refund or a replacement, providing the problem has occurred in a reasonable period of time (I think 5 days is reasonable). If that's not enough, the Distance Selling regulations state I can return goods within 7 days, starting from the day after I receive them, providing I am not happy with them. The terms on Oyyy's site tell me I can only do this providing the goods have not been opened and used, which clearly mine have. However, Mr Trading Standards tells me this only applies to software, music, DVD's, video's, etc. In other words, items which can be copied.

To cut a long story short, I emailed this back to Oyyy and guess what? Silence. They have until lunchtime tomorrow to respond telling me when they are going to pick up my faulty monitor and issue a refund, or I go back to Trading Standards again, as they are (IMHO) blatantly ignoring consumer law and I'm in the mood for a fight! Rest assured if this is not resolved to my satisfaction, I'll be posting my experiences to every consumer review website I can find!

My view on this is that there are several aspects to that situation.

1) You are quite correct - your contract is with the retailer and they cannot just fob you off on the manufacturer. However, in some situations, you may be better off going to the manufacturer and a retailer can advise you of that.

2) Mr Trading Standards is entitled to his opinion, and in my view, he's probably right, but his opinion is not law. Don't assume that because TS tell you something, it'll necessarily hold up in court.

3) The Distance Selling Regs do say that in the case of CDs, DVDs and software, any packaging that is sealed needs to remain sealed, for the obvious reason. It does NOT say that about other goods. The clear inference would seem to be that it is not the intent of the law that that should be the case for other goods. The onus on the customer is to take "reasonable care" of the goods, and the Regs do NOT (with the above exception) explicitly require them to be unopened.

Both TS and the DTI have issued written guidelines to business pointing out that this is the case. However, it is for a COURT to determine what "reasonable care" means, not TS or the DTI.



My advice is that it's often a mistake to start talking about Trading Standards and consumer law too early, because you'll probably sacrifice any goodwill that may exist if you do. It's better to try to do things amicably if you can. The exception to that is if you wish to cancel the contract under the Distance Selling Regs. If you do, you must notify the retailer of that within the mandated period (usually 7 working days i.e. not including Saturdays, Sundays or public holidays, starting the day after delivery, though it can sometimes be longer than that).

The law is very clear about one thing, however. If you exercise your DSR rights to cancel the contract, that starts the clock counting on the statutory period within which your refund MUST be issued, that being "as soon as possible and in any case within a period not exceeding 30 days beginning with the day on which the notice of cancellation was given" (s14(3)).

If the contract is cancelled under the DSR, the ONLY deduction the supplier can make from the refund given is for the cost of collecting the goods from the consumer if the consumer hasn't returned goods at his own cost. And, if the goods are being returned under some other contract term (such as them being faulty on delivery) then the retailer is liable for the cost of collecting them too, because they're in breach on contract for supplying faulty goods. Note, however, that it may be difficult to prove the goods were faulty once they've gone back.

Oh, and the retailer cannot delay the refund until the goods have been returned. And even if the goods are returned damaged, the retailer STILL can't use that as an excuse for withholding the refund, or any part of it.

Look carefully at the s.14(3) I quoted above. Once notice of cancellation has been given, the refund MUST be made in any event within 30 days. It says nothing about whether the goods have been returned or not, or whether they're damaged or not, or whether they're opened or in "as new" condition. It says "in any event".

This is not an excuse to return damaged goods or to not return them, since you do have a duty to take reasonable care of the goods, and the retailer can sue you if you don't. But the onus is on them to sue you, not to withhold your refund.

Essentially, the law comes done pretty firmly on the side of the consumer with the DSR. Dealing with the consequences of that is a part of the retailers cost of doing business at a distance.

But make no mistake ... courts expect people to act reasonably.

If you want to cancel under the DSR, all you need to do is to notify the retailer, in a permanent form (i.e. not by phone) of that within the required period.

But if you want to argue about goods being faulty, and then to use the Sale of Goods Act, etc, the court will generally look unfavourably on anyone who has not genuinely tried to resolve the matter between themselves first. If you leap straight to standing on your rights and adopting an antagonistic attitude (like with that "in the mood for a fight" comment) WILL very likely count against you if it ends up going to court. Courts emphatically don't want every minor trade dispute like this going before the courts because they'll be snowed under if it does. Accordingly, they expect every reasonable attempt to be taken to resolve it before it gets that far, and only absolutely irreconcilable differences to go to court. And, ultimately, if you require a refund under either Sale of Goods Act of the Distance Selling Regs and the retailer won't give you one, you might end up having to go to court to get it. And if that happens, you want to be able to show you've been reasonable throughout.

Jez, I advise that your best bet is either to cancel under the DSR if that's what you want to do, or to adopt a more conciliatory tone if you want to get repair, or replacement, etc. But in any event, were it me, I'd lose the 'spoiling for a fight' tone, because it won't endear you to any retailer or encourage them to try to do anything to help, and it certainly won't enhance your case if it should come to a courtcase.

Standing on your rights early on in any dispute with a retailer is likely to be counter-productive. Is it not worth finding out if the on-site replacement from BenQ will be a brand new model, and if so, considering accepting that? It is solves the problem, then job done. Otherwise, the best bet may be the DSR.

[fat jez]

Hi Saracen,

As far as I am concerned, my comment about being in the mood for the fight is that I plan to stand up for my rights, in this case the Sale of Goods Act and goods being fit for the purpose sold. I've worked in retail so I know the quickest way to make sure somebody won't help you is to have a go at them. My response to their email was along those lines, that my contract was with the seller and that they should deal with my problem. My email reply to them is below

Thank you for your reply. However, my understanding of the Sale of Goods Act is that my contract is with yourselves and that I should not need to contact BenQ for resolution. As the goods are faulty and therefore not fit for the purpose sold, I would like to arrange for them to be returned to you and a refund issued.

I believe also under the Distance Selling Rules, I am entitled to return the goods within 7 days (starting the day after receipt of the goods, in this case the 17th August).

So I wouldn't say I was jumping on my high horse straight away, only pointing out that they have a duty to deal with me themselves.

The reason I don't want a replacement monitor from BenQ is that there are several reports of people having the same problem as me. If I thought I would get a new, working replacement without the flickering screen problem, I would take that option.

Thanks for your reply though, I appreciate the advice

Cheers,
Stephen

[Saracen]

Fair enough, Stephen. The tone of the mail is clearly very different from the post .... though it wouldn't surprise me if the retailer were aware of posts here.

And for the reason for not wanting the BenQ, fair enough. I'd feel the same way, from what I've read.

As a pedantic point, I'd have said that a faulty monitor was more about "satisfactory quality" than fitness for purpose, but either way, you have Sale of Goods Act rights and yes, they are with the seller (though not all provisions the the SoGA apply if the seller isn't a business seller, which doesn't matter here).

Were it me, though, I think I'd want to decide if I'm rejecting goods as unfit under the SoGA, or cancelling under the DSR, or both. And still with a pedantic hat on, the part of the mail you quoted (unless there's a relevant bit you didn't quote) in relation to the DSR says what you understand your DSR rights to be, but doesn't actually say you're exercising them. As a somewhat natural cynic, if I wanted to exercise my DSR rights, I'd make it explicitly clear that I was cancelling under my DSR rights. That way, there can't be any argument afterwards as to whether you were or not, and that form of words you used suggests to me that that could be argued.

If you do cancel under the DSR, then the fact that the goods are also becomes faulty. By default, providing the retailer's conditions make it clear, the consumer is responsible for the cost of returning goods to the retailer. This reflects the fact that the consumer can return goods (most of the time) just because they changed their mind or didn't like them. And if you don't return them at your cost, the direct cost of collecting can be deducted from your refund (and that's the ONLY deduction allowed).

The exception is where you have a legal right to return the goods under some other contract term, including implied terms such as those embedded by legislation like the SoGA. In that situation, if goods could be rejected under such legislation, then the retailer bears the cost of getting the goods back.

The tricky bit, however, could (as I said before) be in proving that the goods were faulty once they've gone back.


We're it me, I think my stance would be :-

1) The goods are faulty
2) I reject the goods because of 1)
3) I cancel under the DSR (so make that explicitly clear)
4) As the goods are faulty, the retailer can collect them at his expense
5) He cannot hold up the refund under s DSR cancellation beyond 30 days, regardless of where the goods are, and whether they've been returned. It is illegal to do so.

Interestingly, a recent (few years ago) change to the law that changed the burden of proof over faulty goods also impacts here. Until that change, you had to prove that goods were faulty, and that probably implied an independent inspection and report. But now, for the first 6 months following sale, the law states that goods that are faulty will be assumed to have been faulty on delivery, unless the retailer can prove otherwise.

So, by my understanding, you can cancel under the DSR stipulating that you also reject the goods are not fit for purpose or of satisfactory quality, require a FULL refund to be issued, require the retailer to collect the goods at his own expense (because they're faulty) and it's for the retailer to take legal action against you to get that carriage cost reimbursed if the goods aren't faulty, and if he can prove that to a court's satisfaction ... which again probably entails an independent report.

Of course, what your theoretical legal rights may be, and what you can convince a retailer to do may be different, with recourse to a court possibly being the only way to force them to do what the law requires them to do but they aren't prepared to do willingly. I can certainly understand why a retailer would want goods back before issuing a refund .... but that isn't what the law actually says. And perhaps that fair enough, since retailers generally require us to part with our money before they ship goods, and we have to take on trust that they will ship goods, that they'll be the right goods, shipped on time and of a legally satisfactory quality. We have to take a lot on trust, and can lose out badly if the retailer goes bust before you get your goods. This time, as I understand it, the boot is on the other foot.



Two more points. I'm interested in the law but am not a lawyer. This is opinion on a forum and not, so far as legalities are concerned, advice.

Secondly, I'm talking about the generic case with retailers, not any one in particular. I've dealt with that specific retailer as a customer twice, I think. In both cases, there was a minor problem with the order, and in both cases, a brief phone call resulted in the matter being sorted entirely amicably, very promptly and to my complete satisfaction.

[fat jez]

Hi Saracen,

Oh yes, I definitely want the monitor returned under the SOGA, as the last thing I want is some other poor person buying the one I had and having the same problems! I also don't want to be out of pocket over the cost of returning a faulty monitor, which I can't imagine will be that cheap!

That was the entire email I sent them and as yet I have heard nothing from them regarding the matter. The bit I put in about the Distance Selling was to make the point that I had some idea about my rights and that I wasn't going to give them up. I'll give Trading Standards a call again to check on the appropriate course of action, as I do want everything to be by the book!

Cheers,
Stephen

[Saracen]

Okay. Just remember that there is a hard time limit on returning under the DSR, within which you have to have notified them of the cancellation. After that time, you have no DSR right to cancel. There are situations under which it can be longer, but generally and if the retailer has written his T&Cs to cover it (and they have) it'll be 7 working days. After that period, you'll be restricted to the SoGA and the DSR right to cancel is lost. I'd suggest keeping a careful eye on that time period.

If you go down the SoGA, while it certainly sounds like the monitor is faulty, could be be established that it's something to do with your equipment? Video card, perhaps? Driver settings? Some software you've got installed that's clashing? Under the SoGA, your right to reject goods and demand a refund depends entirely on the goods being faulty, which can be subject to argument. Under the DSR, with the exceptions mentioned earlier, you have an absolute right to just cancel, and don't need a reason.

If the retailer tests the monitor and it's working, they can decline to refund under the SoGA if the problem is your end. There is certainly the question of where the burden of proof lies, but your strongest rights, IMHO, come form the DSR rather than the SoGA. There, there's no worry over faults or burden of proof, except in relation to who bears the cost of returning the goods. But it's your call, of course.

[fat jez]

If you go down the SoGA, while it certainly sounds like the monitor is faulty, could be be established that it's something to do with your equipment? Video card, perhaps? Driver settings? Some software you've got installed that's clashing? Under the SoGA, your right to reject goods and demand a refund depends entirely on the goods being faulty, which can be subject to argument. Under the DSR, with the exceptions mentioned earlier, you have an absolute right to just cancel, and don't need a reason.

That is certainly a consideration. I have tried reinstalling both Windows and the drivers and also several different DVI cables. I might try putting in a different graphics card again (nVidia), see if it makes any difference. It behaved itself last time, but it generally does once it's been on for a while.I really hope it's not an incompatibility with ATi graphics cards, or I will be screwed under the SOGA. Distance selling is 7 days from last Friday, I believe.

Cheers,
Stephen

[Saracen]

If it was delivered last Thursday, yes, but working days .... i.e. excluding Sat, Sun and public hols.

The general situation is that it can be longer than that (up to three months longer), but only if the retailer doesn't provide certain mandatory info and, last time I looked, the retailer in question did provide the info the DSR requires them to, so it doesn't apply here.

[fat jez]

If it was delivered last Thursday, yes, but working days .... i.e. excluding Sat, Sun and public hols.

So in effect I have longer? If 7 working days starts from Friday 17th, then I make it I have until the 29th (Wednesday) to notify them under the Distance Selling Rules, assuming I don't count the bank holiday.

I was thinking about shoving in a bigger PSU in case the graphics card was struggling for power and that was causing the problem (overclocked Q6600 and a Radeon HD 2900XT). Saying that, none of my games are crashing...

Cheers,
Stephen

[fat jez]

Well, I think the SOGA might me a bit of a tricky one, as the monitor is now more or less behaving itself after I played with some of the driver settings. I was still getting the odd blackout last night, but it was intermittent and the picture came back very quickly. I never experienced it at all with a cheap nVidia card I have, so I worry that it's some sort of ATi compatibility which won't show up under testing. It's also fine under VGA.

So, either I ask to return it under distance selling (anybody have any experience of arranging a courier collection) or I put up with it/use a VGA cable.

Any thoughts?

Cheers,
Stephen

[fat jez]

Well, I spoke to BenQ this morning who agree there is a problem and that as the monitor is less than 21 days old, I would be offered a brand new replacement.

So do I take my chances on that working, or do I hassle Oyyy some more?

Tricky...

Cheers,
Stephen

[GoNz0]

just do what most of us do, cut out the middle man and go direct, they have given you the answer you want, case closed.

[fat jez]

just do what most of us do, cut out the middle man and go direct, they have given you the answer you want, case closed.

Actually, they haven't, in that I am still annoyed that Oyyy can ignore their obligations and fob me off to the manufacturer.

Cheers,
Stephen

[GoNz0]

thats because in the case of things like monitors its faster to go direct rather than wait to return to seller, then wait while they test it, then wait while they get a new one out.

or some nice fella pulls up in a van and swaps on the doorstep.