Buying Goods and Services

Buying Goods and Services & Trading Standards

THE LAW

When you buy goods from a trader, such as a shop, market stall, garage, etc., you enter into a contract that is controlled by the Sale of Goods Act 1979 (amended by the Sale & Supply of Goods Act 1994). The law gives you certain implied, or automatic, statutory rights, under this contract.

See the paragraph headed "Your Statutory Rights" below for a brief outline of these.

THE CONTRACT

What is a contract? - it is a legally binding agreement between two (sometimes more - see below*) parties, involving the exchange of something of value, i.e.money for goods. Lots of contracts are verbal, and only a few need to be in writing, for example land transactions and credit. Verbal contracts are just as binding as written ones, but less easy to prove.

* So-called "Third Parties" to contracts.

A recent change to the law means that, if you give a gift to someone, they can have rights under the contract as a "third party". It is important to mention to the retailer at the time you buy the goods that they are going to be given as a gift - if possible, tell them the recipient's name or write it on any invoices, receipts, guarantee cards etc. and get the shop to endorse it.

What are the main elements that a contract must contain to be legally binding? - there are several, but the most important three are:

• the offer - e.g. you see something in a shop you want and ask to buy it
• acceptance - e.g. the shop agrees to sell it to you at an the agreed price
• consideration - e.g. the legal term for payment in exchange for the goods.

What else is the contract made up of?

- as well as the implied rights laid down in the Sale of Goods Act 1979 (as amended) talked about above, you can also have express rights in a contract. These are where you negotiate special terms important to your contract, i.e., a particular delivery date, or unique specifications for the goods.

This is a very simple look at the law of contract, and if you feel you need more information, contact Trading Standards for further advice.

YOUR STATUTORY RIGHTS

The Sale of Goods Act 1979 (as amended) says that goods should be:

• Of a Satisfactory Quality, i.e. of a standard that a reasonable person would consider to be satisfactory - generally free from fault or defect, as well as being fit for their usual purpose, of a reasonable appearance and finish, safe and durable
• Fit for the purpose - as well as being fit for the purpose for which they are generally sold, goods should also be fit for any specific or particular purpose made known at the time of the agreement
• As described - goods should correspond with any description applied to them. This could be verbally, words or pictures on a sign, packaging or an advert.

Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1994 - between them, these laws allow you to challenge any contractual term that may be unfair or unreasonable, unfairly weighted against you, or is ambiguous.

Standard contract terms should be written in clear understandable language. It is illegal to have a contract term that attempts to restrict your statutory rights, or avoids any liability for death or personal injury. In some cases the Office of Fair Trading (A Central Government Department) may be able to prevent a company from using an unfair term in the future, although they will not help to resolve an individual's problem.

Misrepresentation Act 1967

If you have been told something factual about goods that made you decide to buy them, but which turns out to be untrue, then they have been misrepresented to you. In most cases, you can back away from the deal and have your money back. This can be a complex area of law, involving different sorts of misrepresentation, as well as differing legal remedies. Also, the responsibility for proving a case (i.e. the 'burden of proof') changes depending on the sort of misrepresentation. So, if in doubt, get some advice.

Trade Descriptions Act 1968

Sometimes, if a trader makes a misrepresentation about goods, a criminal offence might be committed under this Act.

example: a trader tells you that a jacket he is selling is 100% leather. Because of this, you buy it, but then discover it is made from PVC. The goods were misdescribed to you, and you can ask for your money back. You should also report it to Trading Standards for investigation under the Trade Descriptions Act

Misleading Prices Regulations

The law does not control the amount a trader charges for goods, but you are entitled to expect the price of goods to be accurately displayed in a shop, catalogue, or advert. If goods are incorrectly priced you cannot force the trader to supply them to you, but you should report the matter to your local Trading Standards Department for investigation.

IF YOU HAVE FAULTY GOODS

The first thing to do is to act quickly. Tell the trader about any problems, either by going back to the shop, by telephoning or writing. You should stop using the goods. Technically, it is the trader's responsibility to arrange to collect faulty goods that you have rejected, especially if the items are large. However, with smaller, more portable items, it may be more practical to take them back to the trader yourself.

The law says you must be given a 'reasonable' length of time to examine the goods and check they are satisfactory. If they are not, and you are quick, you should be entitled to reject them and have a full refund.

What is a reasonable time depends on individual circumstances - you would probably have less time to check a toaster than a car, say - but it might not be long, and recent case law suggests that it might be as little as a week or so.

If you leave it too long, then you may only be entitled to 'reasonable compensation'. Usually, this means repair or replacement, or if neither of these is possible or acceptable, then reasonable financial compensation. The amount depends on how long you have had the goods, the nature or degree of the problem, how much use you have had from them etc.

If you buy goods that turn out to be faulty, and you decide to allow the trader to repair them, you will not have lost any rights to have your money back later if the repair is unsuccessful. If the trader offers to replace faulty goods, then get an agreement in writing that if the replacements are faulty too, you will still be able to have your money back. This is called 'reserving your rights'.

If you have paid for the goods by credit card (not debit or charge card), and the value of each item is £100 or more, then the credit card company has obligations to you too. These rights are given to you under the Consumer Credit Act 1974 under a principle known as 'Equal Liability'. This means that the credit card company and the supplier have the same obligations and responsibilities to you for the goods being satisfactory. You can complain to both the supplier and the credit card company.

SOME OTHER PROBLEM AREAS WHEN BUYING GOODS

Private Sales

When you buy goods from a private individual, you don't have the same rights as when buying from a trader. The legal principle of caveat emptor or "buyer beware" operates. You have no rights to expect goods to be of a satisfactory quality or fit for their purpose, so you should check goods thoroughly before you buy them. However, the law does say that even private sellers shouldn't misrepresent goods to you. So if something has been misdescribed, you might have a claim. Seek further advice if necessary.

Second hand goods

You have full rights under the Sale of Goods Act when you buy second hand goods, although the law does say that you must consider the price paid, and if necessary be prepared to lower your expectations about their performance - for example it wouldn't be reasonable to expect a ten year old, high mileage car to be completely free from fault, or to perform in the same way as a brand new vehicle, or to last as long.

Sale goods

Again, you have full rights under the Sale of Goods Act. However, if the goods were reduced in price because of a fault that was either brought to your attention at the time, or should have been obvious to you on examination, then you would not be able to have your money back later for that particular fault- so, check sale goods carefully before you buy.

TROUBLESHOOTING

You have tried to assert your rights in the shop, but the trader keeps arguing. Check this list for quick answers:

It isn't our fault the goods are defective - go back to the manufacturer
Not true - you bought the goods from the trader, not the manufacturer, and the trader is liable for any breaches of contract (unless he was acting as the manufacturer's agent).

You only have rights for 30 days after purchase
Not true - depending on circumstances, you might be too late to have all your money back after this time, but the trader will still be liable for any breaches of contract, such as the goods being faulty. In fact, the trader could be liable to compensate you for up to six years!

You must produce your receipt
Not true - in fact the trader doesn't have to give you a receipt in the first place so it would be unfair to say that you had to produce one. However, it might not be unreasonable for the shop to want some proof of purchase, so look to see if you have a cheque stub, bank statement, credit card slip etc., and this should be sufficient.

No refunds can be given on sale items
It depends on why you want to return them. The Sale of Goods Act still applies, but you won't be entitled to anything if you knew of any faults before purchase, or if the fault should have been obvious to you. Also, you are not entitled to anything if you simply change your mind.

We don't give refunds at all - you must accept a credit note
Again, it depends on why you want to return the goods. If you have changed your mind, then the shop doesn't have to do anything. But if the goods are faulty, incorrectly described or not fit for their normal purpose, then you are entitled to your money back (provided you act quickly), and you certainly don't have to take a credit note - if you do accept a credit note in these circumstances, watch out, as there may be restrictions on their use. Incidentally, if a shop has a sign up with this sort of statement on, they might be breaking the law - report them to your local Trading Standards Department.

WHEN ARE YOU NOT ENTITLED TO ANYTHING?

• If you were told of any faults before you bought the goods
• If the fault was obvious and it would have been reasonable to have noticed it on examination before buying
• If you caused any damage yourself
• If you made a mistake, i.e. you don't like the colour, it is the wrong size etc.
• You have changed your mind about the goods, or seen them cheaper elsewhere
• You bought the goods more than 6 years ago
  SOME SHOPS MAY REFUND IN THESE CIRCUMSTANCES BUT THEY DON'T HAVE TO!

SOME COMMON QUESTIONS AND ANSWERS

Q. "I paid a £50 deposit on a dining table, but changed my mind. The shop won't give me my money back. Can they do this?"

A. When you place an order and pay a deposit, you enter into a contract. The shop takes a deposit as security and proof of your good intentions. If you break the deal, then you will probably lose the deposit.

Q. "I bought a computer yesterday and I think it is faulty. I have stopped the cheque but the shop manager rang me up today and threatened to take me to court. What are my rights?"

A. Generally, it is very risky to stop a cheque. This is because a cheque is legally an agreement to pay, and by breaking that agreement, the shop may have a valid legal claim against you, even though you might have been supplied faulty goods. It is better to complain to the shop promptly, and they might agree to cancel the cheque for you, or give you a refund or replacement. Remember, paying by credit card for goods over £100 gives you additional rights if things go wrong.

Q. "I was in a rush the other day and signed an agreement for a mobile phone. However, I have now looked at the terms and they seem rather restrictive, not even allowing me to complain if the phone is faulty. Am I bound by this deal?"

A. The general rule of thumb is that you are bound by a contract if you put your signature to it, so NEVER sign one without reading it first, however tedious that might seem. There are some legal protections against unfair or restrictive contract terms that you can fall back on, though.

Firstly, no contract can take away your automatic statutory rights, for example your right to compensation for faulty goods under the Sale of Goods Act, and it is illegal to restrict liability in the event of death or personal injury. Also, other terms must be fair and reasonable, unambiguously worded, clear and easy for the average person to read. If in doubt about a contract, don't sign it, take a copy away, and get some advice.

DON'T LET AN EAGER SALESMAN RUSH YOU INTO SOMETHING YOU DON'T FULLY UNDERSTAND

Q. "I ordered a bed and was told that delivery would be within 6-8 weeks - that was 9 weeks ago. Can I now cancel the order and have my money back?"

A. Generally, there is no legal requirement that goods are delivered within a particular time. All that the law says is that goods should be delivered within a 'reasonable time' which is a matter of debate. If necessary, you should consider setting a firm date for delivery, and incorporate this into the contract. Ideally, you should make sure that a specific delivery date is written down on the order form. This is called 'making time of the essence in the contract'. Although you probably cannot cancel at the moment, you can impose a reasonable time limit now, by writing to the shop and setting a final date for delivery. If the bed still doesn't come, you could cancel it and have a refund.

Q. "I was given a sweater at Christmas that is faulty. Can I take it back to the shop for a refund?"

A. Usually, if you haven't bought the goods yourself, then you don't have a contract with the shop, and therefore, no rights. However, the law has recently changed to allow so-called third parties to have rights if things go wrong. The buyer of the goods needs to have identified you as being the recipient at the time they were bought, so you should check with them, or look to see if they have written your name on any accompanying receipts, invoices or guarantee cards.

Q. "I have been sent books in the post that I haven't ordered, and the company is demanding payment. Do I have to pay?"

A. No. The Distance Selling Regulations 2000 says that if you are sent unsolicited goods (in other words, goods that you didn't order, or ask for) they become your property and you can treat them as a gift. You can keep them, give them away, or sell them, whatever you prefer.

If the company presses for payment then report them to your local Trading Standards Department.

REMEMBER The Distance Selling Regulations 2000 give different rights to consumers buying by mail order, from the Internet, by fax or phone

For any further information, help, advice or to make a complaint - please contact:-

Essex County Council
Trading Standards
2 Beaufort Road
Dukes Park Industrial Estate
Chelmsford
Essex
CM2 6PS

Telephone: 01245 341800
Fax: 01245 494616

Email: trading.standards@essexcc.gov.uk
w: http://www.tradingstandards.gov.uk/essex/