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Faulty mobile phone, who is liable?


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Hello, I have been without a phone for some time & decided to save up to buy one.

I purchased one from a phone shop on Ebay. Within 3 weeks it was clear that the phone was faulty so I contacted the trader. They told me it was clearly stated in the auction that 'Returns - Returns are only accepted if the item is faulty and only if we are notified within 14 days of shipping the item.'

I checked & this was indeed written in the auction.

They have given me the phone manufacturers phone number & are now ignoring my emails. Are they allowed to do this?

I am kicking myself over this as the phone did a couple of weird things the first days I used it, but I thought maybe it was because it was new & it would sort itself out, so I didnt contact the seller. :evil:

 

So now I am out of pocket, with a faulty phone & unsure of whether the seller is allowed to pass the buck to the phone manufacturer?

Ive looked on the trading standards website etc but cant work out what section this comes under.

Does anyone have any thoughts on what I can do about this?

Thanks

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If the phone shop is a business (which as you describe it as a phone shop then it seems like it is) the sales of goods act fully applies and it is the retailer and not the manufacturer who are liable to you under the SOGA

 

If you have a postal address for them send a letter outlining the problem and that you are rejecting goods under the sales of goods act. If no reply after 14 days send a letter before action and then claim in court after that if necessary.

All my posts are made without prejudice and may not be reused or reproduced without my express permission (or the permission of the forums owners)!

 

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Thankyou for replies.

I did pay via paypal but unfortunately in the meantime my account has been frozen due to an unscrupulous buyer saying they didnt recieve an item when they did. And until the matter is sorted out my account is pretty much useless :(

 

I think this phone seller is knowingly selling faulty phones & thinks he is covering himself for the repercussions by writing his 14 day returns blurb on the auction.

I would love to know how watertight it is & teach him a lesson. Ive been ripped off on Ebay by 3 people in as many weeks Im getting so sick of it, and it isnt just sellers, buyers are just as untrustworthy!

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Well he's committing an offence by putting that notice up. I would report it to Consumer Direct / Trading Standards.

 

(1) What 'offence' has been committed?

(2) And CD/TS will do what, exactly.

 

Just because you purchase from a 'trader' doesn't mean you get a full guarantee. You could say the fault was evident from the moment you received it, but if the seller says it was checked and fine on despatch, and any fault was induced by you due to abuse, NOBODY can force the dealer to repair or replace. Since they already provided a 14 days period for returns of faulty goods and you didn't make use of it, all they need to do is send it to a repairer and ask you to pay the bill, if you don't you lose the phone. This is why it may be best to get it fixed yourself, as you stay in control and at least retain the handset.

 

Was it sold as 'New', 'As New' or used? Did you check to see what call durations were on the handset before you started using it?

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(1) What 'offence' has been committed?

 

Consumer Protection (restrictions on statements) order 1976 (Off the top of my head. Any person who makes a statement that purports to restrict consumer rights committs and offence. However, this may have been overtaken by CPUTR - I no longer have access to my database.

 

(2) And CD/TS will do what, exactly.

 

Use it for intelligence purposes and get the person to remove such a statement - hopefully. Further, intelligence can be used under Part 8 of the Enterpise Act. Failure to adhere to civil obligations can result in an undertaking. And failure to adhere to an undertaking IS a criminal offence.

 

 

 

Just because you purchase from a 'trader' doesn't mean you get a full guarantee.

 

The law (SoGA etc) provides for this. The seller is responsible for all statements and descrptions etc given

 

You could say the fault was evident from the moment you received it, but if the seller says it was checked and fine on despatch, and any fault was induced by you due to abuse, NOBODY can force the dealer to repair or replace. Since they already provided a 14 days period for returns of faulty goods and you didn't make use of it, all they need to do is send it to a repairer and ask you to pay the bill, if you don't you lose the phone. This is why it may be best to get it fixed yourself, as you stay in control and at least retain the handset.

 

Goes completely against part 5A of SoGA. It is for the seller to prove that the item conformed to the contract. If that is proven, then what you say is correct.

 

Was it sold as 'New', 'As New' or used? Did you check to see what call durations were on the handset before you started using it?

 

 

Expectations should be lowered, but SoGA still applies in full

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(1) None of this would be of any practical use to the OP. For this to work in practice a duly authorised official would need to be in the same position and make a 'misleading statement' this would then be verifiable then actionable. After-the-even, it becomes heresay and irrelevant for any possible prosecution.

 

(2) Again - nothing that helps the OP directly. or providing a practical resolution to the problem at hand.

 

As for SOGA, all it takes is for an independent report to state that any malfunction could be blamed on the consumer, and SOGA is invalidated. This is why so many people find they have bricked their phones due to inadvertent misuse, and SOGA has not been breached.

 

More interestingly are the 100s of users of the new Nokia N96 which appears to be riddled with operational firmware problems which WOULD be a SOGA issue, and a successful one at that - yet I cannot find anyone who has used this to get a replacement handset on any web forum.

 

Makes you wonder why.

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Because they get poor advice from people who don't know statutory rights from toffee? :-D

 

In the first 6 months, the item is deemed inherently faulty if it develops a fault and the onus is on the seller to prove it is not.

 

Whether the seller provides a full guarantee or not is immaterial, he can not put in place terms which aim to restrict statutory rights, which the 14 days clearly is such a term. T&Cs can only be above statutory rights, not instead.

 

Davethorp is spot on, write to him rejecting goods as faulty under SOGA etc...

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Buzby - I'm sorry but I have to disagree on some points.

 

Firstly, the making os a statement which purports to restrict a statutory right is an offence of strict liability (I would prefer to use aboslute liability as there is no defence whatsoever). If that statement is made on the website, and it is a business, then it is a statement made in the course of a business which I believe is not heresay under the 7 gateways (I'm rusty on this - wasn't my fave subject!).

 

It will in and of itself not help the OP directly. I have said many times that a breach of criminal legislation does not usually render a contract unenforceable. There is here the issue of benefitting the consumer in general - all of us. Moreover, it will be deemed an unfair contract term. Having confirmation of such will help a civil claim.

 

As for the rest, Bookie said it. I should have pointed out that my post was in addition to complaining to the trader / ebay / paypal - whoever.

 

I really cannot state enough that when civil obligations are breached, they should be reported. When evidence becomes available of this being widespread, an undertaking may be sought by the authorities. If that undertaking is breached, it becomes a criminal offence.

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