In Breach of SOGA?

[drcarlos]

I believe so.

The story, purchased a Sony Vaio laptop (paid for via insurance payout voucher) in Sept '07 had to be ordered from the Business website due to my requirements (hardware wise) and it duly arrived, from day 1 the webcam never worked and a clean OS install didn't correct this (however this is not the issue I am complaining about just a minor annoyance I would have happily had fixed. The real problem was last weekend it totally died, it doesn't even POST, I work in IT and know a dead machine when I see it. Now this machine being 4 months old having a problem with the webcam and now being dead leads me to have no faith in the quality of Sony laptops and believe this machine to be unfit for purpose and unsatisfactory.
So today i tried to return it for a replacement of a different brand believing in my naieveity they might do this for me. However the techguy on the desk took my details and toddled off to see the manager returning with a number for me to call Sony to arrange collection and repair or replacement. Now I was not ammused at this point and went off to see him myself.
They basically told me my warranty is with Sony and not them as it is passed the 28 days (horse poo) and they would happily arrange for its repair or I could do this myself but the stated they categorically would not exchange it for another different model. Claiming they were exempt from SOGA as stated in their T&C and I quote.

21. We are resellers to business customers and as permitted under the contract terms act 1977 we exclude claims regarding the quality or fitness for purpose of goods or otherwise which consumers can make under SOGA 1979. We are liable for death or personal injury caused by our negligence. we do not accept any liability for indirect or consequential loss of profits.

Now I think this is flannel and they are the seller and still bound by the SOGA no matter how they wriggle. Now I was nice all the time and never asked to leave the store left of my own free will, but took my broken Vaio with me as I want it replaced and they can have it to examine when they agree to this. I think i have a case for a claim and will consider reporting them to trading standards etc. Any advice??? i don't think I am asking the world for a alternative replacement.

[gyzmo]

where they are selling business to business then the requirements are quite different to when they sell to consumers. As such, you need to establish that you did buy this as a consumer and not in the course of a business. When that is established, then the usual rights in SoGA will be applicable. The notice they have is ineffective for consumers, but as it is a business website the presumption would be for you to show otherwise.

In terms of rights (appplying SoGA to consumer situations), you will be entitled to a repair / replacement / (partial) refund in that order or convenience and minimal inconvenience.

[ForestChav]

SOGA is consumer legislation so it does not apply to B2B transactions, I don't know what does, though.

[drcarlos]

I walked in off the street with the voucher from my home contents insurance policy and said as they had nothing instore I wanted one from the business website, just me as a consumer. The guy was only to happy to take some details and order one for me. The invoice is to me at my home address. I didn't have to show any business credentials or anything.

Carl.

[ForestChav]

Even so, under SOGA they are permitted to provide a repair as a first resolution, if the cost of a replacement is disproportionate.

I would say by offering to return the machine to Sony for a repair they have satisfied their legal obligations under SOGA - that is, unless you can prove that the repair offered would cause you "undue inconvenience".

I would also say that SOGA only really works on a per-item basis in that an item being "replaced" implies like-for-like ie the same laptop. I suppose under SOGA the only way to get a different make laptop would be to rescind the contract and simultaneously purchase another one.

The fact it came from PCWB as opposed to PCW is seemingly allowing them to put up a smokescreen but I'm sure based on what you've said so far that the remedy offered is not in breach of SOGA. With expensive items it is likely that TS or SCC would say that a company was within their rights to offer a repair as an initial resolution.

It is also possible that the failed mainboard is the reason why the webcam didn't work. Again "lost faith" in the product is likely to be something you would have to prove, not just state, in order to convince TS/SCC that you have a case to rescind.

To be honest, I would let them repair the item and see what happens - hopefully both faults would be corrected.

Technically, laptops are made by a handful of manufacturers in the Far East, namely ECS/Uniwill, Quanta, etc who merely take orders from the likes of Sony, HP, Dell, etc, build the machines and then slap the make's label on it. The real issue is who actually makes it as to how good it is, and a lot of them source from more than one ODM so it's hard to tell whether a different make would be any better, or indeed any worse.

[drcarlos]

Originally Posted by ForestChav

Even so, under SOGA they are permitted to provide a repair as a first resolution, if the cost of a replacement is disproportionate.

I would say by offering to return the machine to Sony for a repair they have satisfied their legal obligations under SOGA - that is, unless you can prove that the repair offered would cause you "undue inconvenience".

I would also say that SOGA only really works on a per-item basis in that an item being "replaced" implies like-for-like ie the same laptop. I suppose under SOGA the only way to get a different make laptop would be to rescind the contract and simultaneously purchase another one.

The fact it came from PCWB as opposed to PCW is seemingly allowing them to put up a smokescreen but I'm sure based on what you've said so far that the remedy offered is not in breach of SOGA. With expensive items it is likely that TS or SCC would say that a company was within their rights to offer a repair as an initial resolution.

It is also possible that the failed mainboard is the reason why the webcam didn't work. Again "lost faith" in the product is likely to be something you would have to prove, not just state, in order to convince TS/SCC that you have a case to rescind.

To be honest, I would let them repair the item and see what happens - hopefully both faults would be corrected.

Technically, laptops are made by a handful of manufacturers in the Far East, namely ECS/Uniwill, Quanta, etc who merely take orders from the likes of Sony, HP, Dell, etc, build the machines and then slap the make's label on it. The real issue is who actually makes it as to how good it is, and a lot of them source from more than one ODM so it's hard to tell whether a different make would be any better, or indeed any worse.

According to the SOGA and my Solicitor Friend this section is the one that applies and the key is part 48B section 1 and point b, 'the Buyer requires the Seller to either section a repair or section b replace' and the key that the 'buyer requires' no ifs no buts I am the buyer and I require replacement. Some companies deal with this correctly I can name Sainsburys here as I used to work for them and they would always refund or replace even high value items as it's not worth creating bad feeling with the customers for something they are bound by law to do anyway.

48A Introductory

(1) This section applies if—

(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and


(b) the goods do not conform to the contract of sale at the time of delivery.


(2) If this section applies, the buyer has the right—

(a) under and in accordance with section 48B below, to require the seller to repair or replace the goods, or


(b) under and in accordance with section 48C below—


(i) to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or

(ii) to rescind the contract with regard to the goods in question.


(3) For the purposes of subsection (1)(b) above goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date.

(4) Subsection (3) above does not apply if—

(a) it is established that the goods did so conform at that date;


(b) its application is incompatible with the nature of the goods or the nature of the lack of conformity.



48B Repair or replacement of the goods

(1) If section 48A above applies, the buyer may require the seller—

(a) to repair the goods, or


(b) to replace the goods.


(2) If the buyer requires the seller to repair or replace the goods, the seller must—

(a) repair or, as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer;


(b) bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).


(3) The buyer must not require the seller to repair or, as the case may be, replace the goods if that remedy is—

(a) impossible, or


(b) disproportionate in comparison to the other of those remedies, or


(c) disproportionate in comparison to an appropriate reduction in the purchase price under paragraph (a), or rescission under paragraph (b), of section 48C(1) below.


(4) One remedy is disproportionate in comparison to the other if the one imposes costs on the seller which, in comparison to those imposed on him by the other, are unreasonable, taking into account—

(a) the value which the goods would have if they conformed to the contract of sale,


(b) the significance of the lack of conformity, and


(c) whether the other remedy could be effected without significant inconvenience to the buyer.


(5) Any question as to what is a reasonable time or significant inconvenience is to be determined by reference to—

(a) the nature of the goods, and


(b) the purpose for which the goods were acquired.

Carl.

[lawbunny]

If you purchased the goods in the course of a business (which in your case is slightly ambiguous, but usually if the goods are to be used for business purposes - and from the business website - then it would probably be held that this is a business sale) then the normal provisions of SOGA do not apply to you. Unfortunately, PC World are entitled to just offer a repair at this point.

As PC World have entered a clause into their T&Cs (as you stated above) regarding them being exempt from the normal SOGA terms as this was a business contract, this would seem to show that PC World are entitled to assume that if you order fromt he business website then it is a business sale.

[Chesterexpress]

Originally Posted by drcarlos

48A Introductory

(1) This section applies if—

(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and


(b) the goods do not conform to the contract of sale at the time of delivery.

Carl.

Couple of points;

1) you purchased from the business division of PCW, therefore it is assumed that you were purchasing on behalf of a business, regardless of whether or not you see yourself as a private consumer. You are therefore bound by business purchase rules and legislation. They are not going to question everyone who purchases from PCWB to see if they are a business or not.

2) your solicitor isn't very good at his job, as 48a s(1) ss(b) quite clearly states "the goods do not conform to the contract of sale at the time of delivery" As you have had the laptop for approx. 4 months that doesn't apply in your case. Therefore you don't get to use 48b

Best bet let them attempt a repair and take it from there.

[Gertie100]

Is it just me or is it slightly loaded against the consumer if you have to purchase from the business end of PC world in order to get a high spec laptop? And then don't have the SOGA behind you?
Or is this the norm for laptops - I meant not being able to purchase a high spec machine without going to the "business" bit.

If so shouldn't they refuse to sell to individuals and only accept orders from companies?

[Chesterexpress]

Gertie, PCW normally have the same spec laptops etc instore as they do on PCWB website, so I am surprised that the OP couldn't find one. Also as it was an insurance voucher, the OP could have easily informed the insurance company if he was having trouble finding one at PCW and they could have arranged to have one supplied from another source.

[gyzmo]

quote=Chesterexpress;1344 981]Couple of points;

1) you purchased from the business division of PCW, therefore it is assumed that you were purchasing on behalf of a business, regardless of whether or not you see yourself as a private consumer. You are therefore bound by business purchase rules and legislation. They are not going to question everyone who purchases from PCWB to see if they are a business or not.

No! The courts look at the nature, frequency and profitability of transactions. A person who sells regularly their CDs on EBAY may be regarded as a business. A self employed person who buys a car will be seen as a consumer if it is used for personal use. There is substantial case law on this.

2) your solicitor isn't very good at his job, as 48a s(1) ss(b) quite clearly states "the goods do not conform to the contract of sale at the time of delivery" As you have had the laptop for approx. 4 months that doesn't apply in your case. Therefore you don't get to use 48b

This is the problem with quoting from legislation without reference to the rest of it. If you care to read s. 48A(3), you will see that it says that assumed during the first 6 months that the problem did exist at the time the contract was made, therefore the sections referred to are very much relevant.

Best bet let them attempt a repair and take it from there.[/quote]

Best to check knowledge of legislation before quoting it verbatim

[Chesterexpress]

gyzmo, I stand by my comments. You always think your being clever by nitpicking......well your not!

[gyzmo]

Nitpicking? No. Posting correct information? Yes.

I do not mean to turn this into a contest. Read posts involving Fred2009 or RPOV or whatever he's calling himself. You will see my reasons for posting quite clearly.

You may stand by your comments, that does not make them correct. You have quoted one sub paragraph of legislation whilst omitting another that fundamentally alters the meaning of what you have quoted. You have also incorrectly interpreted what Consumer and Business mean. Look at cases such as Stevenson v Rogers [1999] All ER 613. Also look at the Unfair Contract Terms Act.

I'm coming to realise that my avatar is very much appropriate....

I'm sorry, but if you intend to post anything on here that is meant to be authoritative then please make sure that what you are posting is correct. Doing otherwise only serves to confuse the people who are most in need of accurate information.

[ForestChav]

Originally Posted by gyzmo

Best to check knowledge of legislation before quoting it verbatim

indeed, and if you see the quote of SOGA reproduced above then whilst 48a said the buyer may require repair or replacement (and I do still think replacement refers to "like for like"), 48b says that a replacement may not be offerable if a repair is disproportionate (say if one would cost £50 and the other £500).

(3) The buyer must not require the seller to repair or, as the case may be, replace the goods if that remedy is—
(a) impossible, or
(b) disproportionate in comparison to the other of those remedies, or
(c) disproportionate in comparison to an appropriate reduction in the purchase price under paragraph (a), or rescission under paragraph (b), of section 48C(1) below.

A high end Sony laptop is likely to be about 750-1000 but to repair a mainboard is likely to be about 200. So you're looking about 4/5 times the cost. I'd say that was disproportionate really.

[gyzmo]

Quite true, but we need to establish first tht SoGA is applicable in terms of the OP being a consumer and not a business. Simply using a business website does not make it a business transaction. It will be presumed, but that is rebuttable.

Looking at those costs, then I would agree that replacement would be more appropriate than repair.

[Chesterexpress]

Originally Posted by gyzmo

Looking at those costs, then I would agree that replacement would be more appropriate than repair.

Don't you mean other way around?