At this time of year, there are a lot of potential bargains around, especially on the second hand market, and many people will wait until now to purchase their new to them unit.
Unfortunately, not all advertised items turn out to be the bargain they first appeared to be (hence, our Quick Buying Guide For Used Folding Campers) and, often, buyers can end up with items that turn out to be not as described, and, in extreme cases, illegal or unusable. So. What our our rights when this happens?
As usual, the quick answer is; it depends. In this case, it will, largely, depend on whether or not you have bought your goods from a trader or a private individual, and (to a lesser extent) whether the goods are new or second hand. I say; “to a lesser extent”, as second hand goods sold by a trader still have to be ‘fit for purpose’ etc.
Purchasing From A Trader (New Items)
On the 1st of this month, the Consumer Rights Act 2015 was introduced, and all purchases from that date onwards are now governed by this legislation.
The Act is the biggest re vamping of consumer rights law in many years, and is intended to simplify, strengthen and modernise consumer law. It has been introduced in order to replace three key existing pieces of legislation; The Sale Of Goods Act, The Supply Of Goods & Services Act and Unfair Terms in Consumer Contracts Regulations.
The Consumer Rights Act introduces the following:
- 30 day period to obtain a refund. This is the first time a specific period has been quoted, during which you can reject an item and get a full refund.
- A ‘tiered remedy’ system. which sets out your rights to a refund more clearly. Your entitlement to a refund will depend on how long you have owned the item.
- Failed repairs. A retailer has one attempt to repair a faulty item. If they fail, you are entitled to a refund or price reduction.
- Deductions from refunds. No deduction can be made from a refund in the first six months of ownership of an item. The only exception to this is motor vehicles, where a reasonable deduction can be made for the use you have had of the vehicle. It will be interesting to see if retailers attempt to apply this to new caravans and campers.
- Digital content rights. This new part of the law gives consumers rights in respect of online digital content, including content that is provided for free, alongside paid for content.
- Unfair terms in consumer contracts. It will now be easier for consumers to challenge hidden fees and charges. Now, the key terms of a contract, including price, may be assessed for fairness unless they’re both prominent and transparent.
- Pre-contract information The Consumer Rights Act states that if a retailer provides pre-contract information in relation to a service and the consumer takes this information into account, the service must comply with that information.
As with the Sale of Goods Act, under the Consumer Rights Act all products must be of satisfactory quality, fit for purpose and as described.
The rules also include digital content in this definition. So all products – whether physical or digital – must meet the following standards:
- Satisfactory quality Goods shouldn’t be faulty or damaged when you receive them. You should ask what a reasonable person would consider satisfactory for the goods in question? For example, bargain bucket products won’t be held to as high standards as luxury goods.
- Fit for purpose The goods should be fit for the purpose they are supplied for, as well as any specific purpose you made known to the retailer before you agreed to buy the goods.
- As described The goods supplied must match any description given to you at the time of purchase.
Who Should You claim Against?
If the goods you have purchased don’t satisfy any of the above criteria, you have a claim under the Consumer Rights Act. Your rights under this act are against the retailer, not the manufacturer, and so you must take any claim to the retailer.
What you can claim will depend on how much time has elapsed since the purchase, as follows:
First 30 Days
Provided you make a claim within 30 days, the Consumer Rights Act gives you the legal right to reject the goods, and get a full refund. After that period, you will not, automatically, be entitled to a full refund, if the product develops a fault.
From 30 Days To Six Months
If you discover a fault within the first 6 months (but after 30 days) then, for legal purposes, it is presumed that the fault was there from the time of delivery (unless the retailer can prove otherwise). That is a key point, as it is down to the retailer to prove that the fault wasn’t there at the time of delivery. It is NOT down to you to prove that it was.
In this situation, you must give the retailer the opportunity to repair or replace it. You may chose whether you want the product repaired or replaced, but the retailer can refuse, if your choice is disproportionately expensive compared to the alternative.
They are only allowed one opportunity to do so. If the repair fails, or the first replacement is also faulty, then you have the option of either a full refund, or a partial refund, if you wish to keep the product.
You are entitled to a full or partial refund, instead of a repair or replacement, if;
- the cost of repair or replacement is disproportionate to the value of the goods
- a repair or replacement is impossible
- a repair or replacement would be unduly inconvenient
- the repair / replacement would take an unreasonably long time to undertake
- the repair or replacement has failed
If a refund is made, within the first six months, then no deduction from that refund may be made by the retailer, with the exception of motor vehicles, where a reasonable usage deduction may be made. If you prefer to keep the goods, then an appropriate price reduction can be requested.
Over Six Months
After the first six months, the emphasis shifts, and the burden of proof is now on the purchaser, to prove that the product was faulty at the time of delivery. In practice, this can be difficult, and will, probably, require some sort of expert report, opinion or evidence of similar problems across this particular product range.
You have six years to make a claim, in England and Wales, and five years in Scotland, if a retailer refuses to repair or replace a faulty item.
Delivery Of Goods
The retailer is responsible for the goods, until they are physically delivered to you, or someone authorised by you to receive them. Crucially, this means that it is the retailer who is liable for the delivery service, and not the couriers / delivery company who are employed by the retailer. If a parcel is left with a neighbour, who is not designated, by you, to receive it, then the retailer remains responsible for the item.
Unless a longer period has been agreed, then there is a default delivery period of 30 days. If the retailer fails to meet this deadline, then your options are;
- If your delivery is later than agreed and it was essential that it was delivered on time, then you have the right to terminate the purchase and get a full refund.
- If the delivery isn’t time essential but another reasonable delivery time can’t be agreed, you’re also within your right to cancel the order for a full refund.
Unfair Contract Terms
Your rights under the Consumer Rights Act make it easier to challenge hidden fees and charges.
Now the key terms of a contract, including price, may be assessed for fairness unless they are both prominent and transparent.
This is an improvement for consumers because previously such terms were exempt from a fairness test if they were written in plain language.
Terms may be deemed unfair if:
- they are contrary to the requirements of good faith – meaning they must be designed, negotiated and entered into with the consumer in a fair and open way
- they cause a significant imbalance between the rights of the retailer and consumer to the detriment of the consumer.
Purchasing From A Trader (Second Hand Items)
In actual fact, your rights under the Consumer Rights Act (as they were under the Sale of Goods Act) are exactly the same as they are for new items, although, of course, we must make allowance for a reasonable degree of wear and tear, when buying second hand goods. That said, the goods must still fulfil the three critical criteria described above. They must be of satisfactory quality (for their age) fit for purpose and as described. If they fail on any of these points, then you are entitled to the same rights as you would be for a new item.
Purchasing From a Private Individual
Buying from a private individual is a very different scenario, and it is very much a case of; buyer beware.
Unlike traders and retailers, there’s no obligation on the seller to disclose faults. But misrepresenting goods is not allowed.
For example, if a private seller describes a tent as; ‘a green tent’ and they send you a tent which is green, but badly stained with mildew etc, then you wont be entitled to a refund. However, if they describe it as; ‘ a brand new tent’ and it arrives in a stained or damaged condition, then you may have recourse to request a refund or replacement. This is because they have misrepresented the quality of the tent.
Likewise, if someone sells you a; ‘Pennine Pathfinder folding camper’ and you turn up to view, if all looks OK, and you return home with your new purchase, only to find out a few days later that it is riddled with damp, and none of the appliances work, then you will have no entitlement to a refund or replacement (again; buyer beware). On the other hand, if the camper was described as; “In excellent condition, with no damp, and all appliances in good working order”, then you are likely to be able to request a refund.
If the seller (private or trader) refuses to rectify the problem, then your next course of action is, probably, going to be to pursue a case through the Small Claims Court. The Small Claims Court can deal with claims up to a maximum of £10,000.
Cases involving traders are likely to be more more straightforward, as the Consumer Rights Act has been brought in to simplify the whole system, and your rights are pretty clearly defined. Where private sellers are involved, however, then this is somewhat less clear cut.
For example; if a private seller describes a folding camper as; ‘immaculate condition’ and it turns out that there is a lot of mildew hidden behind bed pods, roof linings etc, then that is misrepresentation, and, hence a claim.
Likewise, if they describe all appliances as; ‘in good working order’ and it turns out some of them don’t work, then, again, clear case of misrepresentation, as it would be an easy enough task for the seller to check them. (Even if they are not qualified to service them, they are able to determine if they are working, or not).
However, if, in the first example, the camper is described as ‘in immaculate condition’ and it turns out to have a hidden damp problem, this is more of a grey area. It is, clearly, a misrepresentation, but whether, or not, it was deliberate, is far less obvious.
In this case, a claim, through the Small Claims Court, will not be clear cut, however, there are two things to bear in mind here;
- Whilst, in criminal cases, the prosecution must prove guilt ‘beyond reasonable doubt’, in a civil matter, such as this, the court will look at the most likely outcome, based on the ‘balance of probabilities’, so, as the claimant, you have less onus on you to prove that the seller deliberately misrepresented the facts. However, this, basically, means that, often, it can, simply, come down to how well each party performs on the day.
- If the court are unable to come to a clear decision as to the actions of the seller, they are able to make a partial award, so, even if you are unable to prove that they deliberately misrepresented the facts, it is quite possible you will be awarded sufficient funds, in order to rectify any issues arising.
The rights we have will, largely, depend on who we bought from. If we purchased an item from a trader, then we have extensive cover from the newly introduced Consumer Rights Act. If, however, we are buying from a private individual, then it is very much a case of buyer beware, as we will have little or no come back, unless the seller misrepresented the condition of the item being sold. Then, we MAY have recourse to a claim, but it won’t be a clear cut affair.
The simple advice, therefore, will always be to make sure you check your potential new purchase VERY carefully, before buying. Beware, too, of adverts that are very vague, and non specific. ‘For sale. Bailey Pageant’, makes no reference to condition, and, therefore, nothing to misrepresent. If you buy this item, and the whole thing falls apart on the way home, you will have no legal recourse, as there is no misrepresentation. Again; BUYER BEWARE!