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Thread: Need some mobile legal advice

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    Need some mobile legal advice

    Hi to all.

    I need some advice please. recently I bought a samsung gs2 from dail-a-phone. And it Seems faulty the wifi signal is a-bit weak. They asked me to send it back for test and replacement.

    However it can take upto 2 weeks while I will be without a phone and am still paying for the service am not using. I asked them if they could send me one simultaneously, but they are not having any and insist I return the phone back first.

    Where do I stand in terms of legislation?

    And what if add insult to injury, they claimed it to be working since the fault of weak signal is only if you are in another room.

    Thanks

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    Re: Need some mobile legal advice

    Have you only just got the phone? I.e. within the 14 days? If so you could insist on returning the phone under it's "cooling off period" that all networks provide. If you are over the 14 days but are convinced that the wi-fi problem is fault then you need to be stating to them that you want a replacement. If you have had it much over a month then it is standard practice to let them inspect it. The very least they could do if offer to reimburse the cost of the contract over the period you will be left without the phone..

    I'm sure Saracen may come along soon to clear things up on exact legislation.
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    Re: Need some mobile legal advice

    I received the phone on the 14/06/11 I sent first email to them on the 24/06/11 asking for further advice because I thought the phone had wifi problem. They emailed be back on the 27/06/11, asking me to contact network provider for assistance from my handset which is o2. next day I phoned them and after being transferred around the lady couldn't understand and kept on insisting "network in your area has problem" but eventually agreed could be the handset, but I should go down to o2 shop where I bought the phone, even-though I kept on telling her I bought it from dial-a-phone. She said there is an o2 guru who will check it for me, and will give me a replacement phone (so she said). A day or two later on the 30/06/11, I took time out to go down to my local o2 shop, where an o2 guru told me the phone is faulty even though he hardly looked at it, (much less test anything) and told me to contact dial-a-phone who should replace the phone for another one as he can't do replacement since I didn't bought it from them directly even though contract is with o2. On the same day 30/06/11, I emailed dial-a-phone and told them the steps I took and the advice given by o2, I got a reply on the 01/07/11 that an exchange will take place and they sent me a returns bag which could take up to 5days to arrive and once the phone is returned to them, then the exchange will take place. I emailed them back on the same day 01/07/11 asking them to send the replacement at the same time, as I am paying for the service am not using, and I got email today from them, but is dated on 02/07/11, that they can't do that, as they need the phone back and they need to inspect it before a replacement is sent. They also quoted a link to terms and conditions to that effect.

    Now am asking here, as it seems these company's are getting away with it, and I don't know if consumer law has been updated. Or what my rights are?

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    Re: Need some mobile legal advice

    i think you should give consumer direct a call. its rather complicated but i would have just sent it back during the 14 days. also if you do not use the services just make sure they refund you money.

    I also suggest that you dont mention dial-a-phone and just go into another o2 shop. tell them that your phone doesnt work and that you would like a replacement. bear in mind they will always try to fob you off so prepare for a struggle.

    good luck but mobile phone companies are getting from bad to worst.

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    Re: Need some mobile legal advice

    You cant get away with not mentioning a 3rd party company to O2. When they scan the IMEI number of the phone if it wasnt purchased from O2 then it comes up with nothing on the system. The database only holds IMEI numbers from products purchased in an O2 store, O2 online or via the direct sales over the phone.

    So if you have a faulty handset that was purchased elsewhere you need to send it back to where you got it from.

    When it comes to service contract, the way it works is the network is liable for the sim card. If you put your sim in another handset you can still use their service so effectively you havnt had loss of service. Most O2 stores actually have loan phones in stock, if they dont at the time call in on a Thursday at about Lunchtime as they get their deliveries in on that day each week (busy over weekends and can run out, deliveries are once per week). Just a basic little phone that you can talk & text with. You pay a £20 deposit on the phone which gets returned when the loan phone gets returned.

    I know this much info as I worked for O2 until October last year. They are a good company to actually deal with.

    Hope this helps

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    Re: Need some mobile legal advice

    Quote Originally Posted by adder View Post
    Hi to all.

    I need some advice please. ....
    Just to be clear, I'm not a lawyer and I only ever give one piece of actual advice, which is .... consult a lawyer. That's not quite as daft as it sounds as a lot of people have free legal advice available via the legal protection on car or home insurance, though these are sometimes limited in what areas they cover. If not, there's always Consumer Direct.

    So anything I say here is a discussion on a forum, not advice, and if you act on it, it's down to you.

    So, ass suitable covered, and in reply to the PM, you're in one of the tricky grey areas, because you appear to be dealing with two issues. And to be fair, Ferral did a pretty good job of pointing it out in practical terms.

    But you asked about legislation. Most consumer protection comes from either the Distance Selling Regs or the (as amended, numerous times) Sale of Goods Act. The DSR gives quite a bit stronger rights, but has a very short time period in which you have to act. From what you say, you've probably already missed that boat.

    Essentially, for goods, consumers usually have 7 working days from date of delivery to cancel an order for "distance" bought goods, starting the day after delivery. Within that time, you have to notify the seller that you want to cancel, and you usually have to do it in some permanent form (i.e. letter, fax, email, etc) but not by phone. Only if the seller's T&Cs says they accept phone cancellations can you do it by phone, and most don't, and even if they do, from a perspective of having proof, you still ought to do it by a "permanent" method, or at the very least, confirm it in writing. And that 7 days might be a lot monger than that, but only if the seller goofs and doesn't give you the information the DSR mandates that they must, and few large outfits get that wrong these days. Without seeing ALL communications from them, pre and post delivery, it's hard to be sure, but I'd be very surprised if they slipped up on that.

    The above is for goods. For services, it;s similar, but there are one or two large differences. For a start, with services, the 7 days ends, effectively, either at the same 7 days or when, with your permission, the service starts. For mobile phones, as soon as you activate the contract and start getting network coverage, the service has started. I'd bet you'll find that in their T&Cs somewhere, too.

    When buying a contract mobile phone you are, whether you realise it or not, entering into two contracts, one for the phone and one for the network coverage. You may do it all in the same shop (online or not), and the supplier might be the same for both, but often isn't.

    And what confuses things even more is that you could be physically present in a shop where they sell you a phone, but what is actually happening, legally speaking, is that you have a contract with the shop for the phone, but they are merely an agent for the network service and the contract for that is with the network provider.

    So, if that has happened, you'll quite possibly find the shop liable for the phone but not the network contract, and the network service provider liable for the service contract but not the phone.

    But sometimes, the network sold the phone too, in which case they could be liable for both.

    As I said, it's a bit tricky, and a bit of a grey area.

    On the assumption, as seems likely, they the DSR is now out of the equation as it's most likely too late, you're then left with the Sale of Goods Act.

    When you buy goods, like a phone, you "rights" effectively go though two stages. When you first get something, you have a brief period to ensure, it legal terms, that it "complies with contract". Did you get, in other words, what you paid for? Is it the right model, for instance? Is the spec right? If you bought a 3GHz processor and what arrived was a 1.5GHz processor, it would not comply with contract.

    You have a "reasonable" time to ensure that goods do indeed comply with contract, within which you can reject the goods entirely if they do not, and are entitled to a full refund. But that "reasonable" period is not defined anywhere. It may be very short indeed (a day or two), and will rarely be more than a month or so (though in some circumstances, could be). Ultimately, only a court can tell you whether you acted in a reasonable period, because it will depend on the nature of the goods, and on other circumstances. If you were involved in a car accident on the way home from the shop and stuck in hospital for 3 months, then you've had no chance to check that goods comply with contract while you're in there. So, there's no defined reasonable" period.

    But at some point, shortly after purchase, you have legally "accepted" the goods. I don't mean that you've accepted delivery, but you've accepted that the goods comply with contract. That can happen in several ways, including :-

    - doing anything incompatible with not accepting them (modifying them, selling them, etc), or
    - overtly indicating that you accept them, or
    - not acting fast enough to reject them within a treasonable period.

    After "acceptance", you've effectively lost the right to reject them completely, and are now left with rights to expect the goods to be "fit for purpose", and of "satisfactory quality". As you can take legal action for up to 6 years (England and Wales, Scotland's a bit different), you have those rights for up to 6 years, but that doesn't mean if it packs up in 6 years, you get a free replacement.

    What you are covered for is "inherent" faults. If a product fails before it's "reasonable" life expectancy, then the issue is .... why? An inherent fault is one that existed when you bought the product. So, unsatisfactory component quality, design flaws, shoddy manufacturing, etc, would all be inherent. If it's just worn out through normal use, though, you aren't covered. For an example, think about car tyres. It's not just time that matters, but mileage. Also, of course, anything you did that caused the failure is not an inherent fault. #If you took the product to bits (when you're not supposed to), if you put diesel in your petrol engine, perhaps if you bought a consumer-grade power tool and used it 8 hours a day in a business use, or if there were installation or usage instructions and you ignored them, then you'd have no comeback. Suppose you buy a saucepan, and leave it on high heat for hours with nothing it it .... odds are you'd ruin it. If you install a processor in a PC with thermal compound, or even without a heatsink and fan, you'd ruin it. None of these are "inherent" faults.


    So .... for Sale of Goods Act, questions are :-

    - have you "accepted" the goods? If not, you can reject them if they don't conform to contract.
    - after that, is any fault "inherent"?

    For 6 months after you buy, faults are assumed to be inherent, unless the supplier can prove otherwise. That covers you. Can the supplier prove any fault is not inherent ... which implies proving abuse of the product, incorrect usage, accidental damage (which may be covered by their insurance, or yours)? After 6 months, the assumption is the fault is not inherent, unless you can prove it is.

    If they cannot, then they are obliged to provide either a repair or replacement, and you can indicate your preference, but they don't have to abide by it if it would be impossible or disproportionately expensive. If neither are possible, they can provide a refund which may be partial, with a deduction to reflect any usage you've had from the product. The pro-rate refund wouldn't really be applicable here, because the product is so new, but if "normal" life expectancy was 3 years and you'd had 18 months out of it before it failed, you'd maybe get half back.

    In the case of repair/replacement, what the SoGA actually says in relation to timescales is ....

    "within a reasonable time but without causing significant inconvenience to the buyer".


    So .... are you entitled to demand that they replace immediately, or prior to getting the old phone back? Probably not. They are, after all, entitled to check out the phone because, if as seems quite possible, the "reasonable" period to reject it has passed, then they're only liable for inherent faults, and need to be able to inspect the goods to form an opinion. If you think about it, this is the mirror image of you having a reasonable period to ensure goods conform to contract, and is only fair.

    So, it all comes down, ultimately, to whether they are acting in a "reasonable" period, or causing "significant inconvenience". And bear in mind, it's not your opinion on reasonable or significant that matters, but what you can convince a court of, because ultimately, only a court can say it is or isn't significant or reasonable.

    IMHO, if you go to a court and say that a few days, or even a couple of weeks isn't reasonable or is significantly inconvenient, then without a good reason why that's the case, you'd probably lose.

    One final illustration of how varied "reasonable" can be. If you ordered a suit and it was a week late arriving, would that be unreasonable? Usually, probably not, but if it was a custom-made suit for your wedding, and the seller knew it was a wedding and when the wedding was, and the suit arriving a week late meant it arrived two days after the wedding, then yes, it'd be unreasonable and/or cause significant inconvenience. That's why the legislation uses phrases like "reasonable", and "significant", and why only a court can tell you whether your case meets those criteria or not ... because it'll vary with every case.

    That, really, is the long-winded way of saying that it doesn't look to me like they're acting unreasonably, and that you're probably stuck with going along with it, at least in terms of your legal rights. If you make enough of a nuisance, they may (or may not) do something to shut you up. Some companies will, others won't. But legally, I don't think you've (yet) got much grounds for an issue.

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    Re: Need some mobile legal advice

    Thanks you for the replys. I'll give them another email see what happens, otherwise am stuck with the situation and let them deal with as they want. Still not had a bag to send it back to them.

    Would I be still under DSR if I contacted them on the 7th day not including the day of delivery, to report fault and ask for advice for an action?

    Also I've just discovered another fault with this phone the gps does not lock or if it does then is lost quickly. So 7days DSR is not enough since it is a smart phone and to check all the functionalities easily can take lot longer, I think in terms of tech. or smart phones this period should be increased.

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    Re: Need some mobile legal advice

    Quote Originally Posted by adder View Post
    ....

    Would I be still under DSR if I contacted them on the 7th day not including the day of delivery, to report fault and ask for advice for an action?
    .....
    I've not seen that tested anywhere, but by the letter of the Regs I'd say .... no.

    The Reg says the if consumer "gives a notice of cancellation to the supplier ..... the notice of cancellation shall operate to cancel the contract".

    I'd say it's an either/or thing ... either you've cancelled the contract, in the required manner and within the stipulated time period and conditions, or you haven't. The exact form of that notice of cancellation isn't stipulated, in that you don't have to use a defined form of words, but the Regs require (Reg 10 (3) ....

    which, however expressed, clearly indicates the intention of the consumer to cancel the contract.
    This cuts both ways, of course, but mainly, it;s in the favour of the consumer. The retailer can't reject the notice because you spelled "cancel" incorrectly, or a got a comma in the wrong place, but it does require you to clearly express the intent to cancel the contract. Sorry, but I can't see how reporting a fault is cancelling a contract, because you could be after other resolutions to the problem, and asking for advice certainly isn't cancelling.

    This is one of those situations, I'm afraid, where knowing your rights, and acting on them promptly, is essential, and finding out too late is, sadly, just too late.

    Of course, as said, IANAL (I Am Not A Lawyer).

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    Re: Need some mobile legal advice

    Quote Originally Posted by williams22 View Post
    So what are you doing all these days from the day you have purchased your mobile... i think you should have been replaced it the day you found trouble in it...
    Well at first I thought maybe there was something I can do or maybe I was doing something wrong, so searched on Internet for a solution. Only then I found out that there are loads of other people having the same issue with it, some are worse and some are just like mine, while others are claiming it's working fine.

    Since I wanted the phone and deal was quite good too, I then contacted them. But I asked for further advice on the 7th day, because I thought maybe there is something they know or can tell me to make it work, without sending it back or cancelling the order.

    I can probably wait for a replacement, but my concern is that too will be same or worse, as it has hardware fault which am sure they will not accept, as a recall would be huge, and it would have given me a chance to compare both units before sending other back. More users are reporting wifi and gps fault.

    I spoke to o2 and they say had I bought of them directly then the o2's policy is to send a replacement first and then ask for the other to be sent back. However this is through Dial-a-Phone and they can't help, as that's their policy.

    They always take at least a day or even longer to reply, and I think they are buying for time, and after 28 days they can tell me to contact Samsung. Thanks to Saracen and all you guys, this is the email I sent them yesterday and not got a reply from them as yet, and still no returns bag.

    Code:
     Thank you for your reply, however I contacted Dial-a-Phone on the 7th day of receiving the phone, not including the day of delivery.  Which is within DSR period.  I could not have rejected the goods since they had to be fit for the purpose.  Since I have not "accepted" the goods? I can reject them because they don't conform to contract. 
    
    I have also discovered another problem with this phone, that it does not lock on to gps often and keeps loosing signal if it does when wifi is switched off or disconnected.
    
    Further more you mentioned 28days, but fail to also provide me with information of 14 days cooling off period and also 7days DSR, at the same time, which you were required to legally provide me with, so I could have taken alternative action.
    
    It would also be in the interest of dial-a-Phone to send me a replacement handset ASAP as a good customer care and PR.
    
    For all of the above I am entitled to ask that they replace the handset immediately or consider a reimbursement for the inconvenience suffered.
    
    Regards
    Last edited by adder; 06-07-2011 at 08:47 PM.

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    Re: Need some mobile legal advice

    Some update....

    Had a call from them saying that handset could go missing so they need it back, however the person I spoke to said he will send one as soon as I post it and he has a tracking number, just to email him when posted.

    The postage bag arrived late yesterday, as they didn't bother sending it the first time. And I posted it first thing today, sent email.

    Got a reply from someone else, they won't be sending it after-all, until they get the other back, so more delays.

    Why make an agreement, do people feel they can just say anything on the phone and negate..

    Am feeling everything is a rip-off and getting worse day by day.

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    Re: Need some mobile legal advice

    Quote Originally Posted by adder View Post
    Some update....

    Had a call from them saying that handset could go missing so they need it back, however the person I spoke to said he will send one as soon as I post it and he has a tracking number, just to email him when posted.

    The postage bag arrived late yesterday, as they didn't bother sending it the first time. And I posted it first thing today, sent email.

    Got a reply from someone else, they won't be sending it after-all, until they get the other back, so more delays.

    Why make an agreement, do people feel they can just say anything on the phone and negate..

    Am feeling everything is a rip-off and getting worse day by day.
    What I am going to say is very important, always take the persons name you spoke to because it always depends who is on the other side of that phone and how helpful they feel.

    Is this fair no it is not but that's is how life is my friend.

    I have dealings in this field every day of my life and some networks are more helpful than others but I learnt from the beginning get as much information on the person I am speaking as possible.

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    Re: Need some mobile legal advice

    @Kovoet, I know the name of the person and extension number, they just fail to fulfil the agreement they made. They always reply late to email sometimes even takes 2 days, my guess is other people are having problems with them too and volume must be high.

    Anyhow they have now received handset, and are going to be sending a replacement, but my question is should this also have problems, what are my legal rights? Can they ask me to contact Samsung because it's been 28 days or are they still responsible?

    Also this phone is assembled in three different country's, mostly Korea and China, the one I had was from Korea. if they send me one from china, can I ask for one from Korea? As the production line and quality control is better there, and that's where my first handset was from.

    Thanks
    Last edited by adder; 13-07-2011 at 07:08 PM.

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