Is a faulty handset part of the contract?

[Going Down]

I have a handset on contract that I've had for 4 months, I had a replacement within a few days of getting it for a faulty battery/power but it also had another fault which I didn't mention.

 

Fast forward a few weeks and the fault on the first handset has happened again, the provider did a diagnosis and agreed it was faulty and replaced with no issue. They also replaced the replacement 6 days after that with the same issue. At this point I was told that a 3rd consecutive handset with the same error would trigger an offer for an alternative handset. lo and behold 3 days later the problem happened again.

 

I've been offered a choice of 2 handsets, 1 of which is no longer offered to new or upgrading customers, the other I just don't like.

 

The only alternative handset I would like is much more expensive and I'm not unreasonable so I don't expect to get that model for free and I can't afford the additional fee even if they offered it me.

 

I am a bit aggrieved that I don't even get the choice of any similarly priced handset that any other upgrading customer could choose, only the 2 generated by the computer which seems to have been based purely on the megapixels of the camera.

 

My stance is that the handset forms part of the contract, and as they have willingly replaced it as faulty 2 times there is little dispute that the phone is not fit for purpose. As far as I am concerned I entered into a contract for a specific handset along with a monthly subscription, They cannot provide a faultless handset and have therefore failed to hold up their end of the contract.

 

I do not feel that I should be under any obligation to take the alternative handset that they choose to offer in light of the fact that they are failing to meet their side of the deal. So I have asked them to take the faulty handset back and cancel the term of the contract. I'm happy to carry on paying for the monthly calls and will upgrade to a different handset as and when I find an alternative I want and can afford.

 

They have refused to do this and have now claimed that they shouldn't even be offering and alternative handset as I should have had 3 replacements with the same fault (4 phones in total) with the same fault, so I have accepted yet another handset. Their stance is that the monthly contract is separate from the handset and they will not cancel it and that they only have obligation to offer a replacement or a suitable alternative and if I choose to refuse it then that's up to me.

 

Am I right here? Does the handset form part of the whole contract of sale? bearing in mind I only signed the new contract to get that specific handset?

[ErikaPNP]

The contract for mobile phones is usually for the tarriff you are on, it doesn't include the handset. The handset is a gift. If you stay with them after the contract is up, you are eligible for a new handset free or at a reduced price (upgrade).

 

Check what the contract states.

[jacktheband]

The handset does not form part of the contract. The equipment supplier is required to repair or replace the handset within the 1st 6 months. It seems as though your equipment provider is replacing which, in an ideal world, would make it easier for you (although, they don't have to replace it, they could repair it instead and still be fulfilling their requirements).

 

If they replace, they are required to provide the same type/model as a replacement. If they are offering you alternatives then that seems like quite a flexible approach from them, as they certainly are not required to do so. Therefore, bottom line is if you do not want any of the alternatives they offer, and they cannot accommodate any alternatives that you want instead, then it's back to the original requirement of having the same model as a replacement. There no legal right for you to insist on other options.

 

Sorry i cannot give you more positive news. If you only took the contract out to get a specific handset, i would imagine that you'd really want only that model of phone as a replacement, although for it to not have the same fault again. Feel free to post what type of phone it is and what fault it has had. You never know, there might be some sort of workaround for the problem!

[Going Down]

There is no work around, it is a common fault. It's a LG KM900 which freezes, what's more I can't try to fix it myself as that would put me in breach of the terms. I contacted LG directly and they said it has to go back to Orange.

 

As for it being a gift and not forming part of the contract, that seems to be in contradiction to my receipt which states

 

By purchasing an upgrade phone you are subject to a new minimum term contract, which was agreed at time of purchase

 

Further more there is an entire section in the terms and conditions which quite clearly state that the phone is not owned by me until all payments due have been paid ie the monthly payments under the new tariff for 18 months.

 

So the contract is part of the entire transaction as without the handset the contract wouldn't have existed and the phone is quite clearly not a gift until all the payments have been made.

 

Yes they have offered the replacement/repair, but I'm now on my fifth phone in total and my fourth in 2 weeks, this cannot continue ad infinitum can it? It takes me an hour to backup the phone and another 2 hours on average waiting for the courier to deliver the replacement and another hour restoring the phone to the settings I want so I've wasted 12 hours so far in the last 2 weeks.

 

It's all well and good them offering an alternative, but I don't want it and you wouldn't be forced to take an alternative make/model of any other product where a tariff isn't involved, why should this be any different?

[jacktheband]

Just checked the Orange wesbite and found the following:

 

14.1 Your Device and Accessories are acquired by you outside the terms of your Contract.

 

And yes, i would also be somewhat fed up if the model of phone i had kept causing me grief. I which case I'd either accept one of the alternatives they have offered, or i would be looking into how else to get a phone i wanted (buying online, selling the one you've got, etc.). I wish i could give you more suggestions, but i don't want to give you any false hope that you have a right to demand more alternatives from your supplier.

[Powlo1]

Jacktheband is correct!

 

What your referring to is an action that leads to acceptance of the contract! By choosing that phone your agreeing to take the contract.

 

Your handset is covered by the SOGA, your entitled to have the handset repaired, they do not need to change it to another model this is just Orange policy to do it to keep customers happy.

 

Bottom line is that the Handset has nothing to do with your contract, it is just a means to reel you in.

[Going Down]

I appreciate the replies.

 

We've established that I do not have to take an alternative, so at what point do I have the right to refuse yet another replacement faulty handset?

 

If I refuse to accept their alternative and they cannot provide the handset originally "purchased" and will not provide the alternative I want we are at a stalemate.

 

This then leaves me with no working handset which leaves me unable to use the service the contract is for.

 

I do still dispute the handset not being part of the contract. By contract I do not mean the tariff, this is part of the contract of sale along with the handset. The very fact that they own the handset until the tariff has ended links the handset to the tariff and the fact that they state on the receipt that the purchase of the handset results in the contract term, if the purchase of the handset is cancelled due to them being unable to provide a working one, the tariff should be void?

 

If I bought a TV and it didn't work, I wouldn't have to accept a different model, I would be entitled to a full refund I wouldn't even have to accept 4 replacements before that refund.

[Powlo1]

What you don't seem to understand is that there are 2 contracts here.

 

1 for the sale of the goods. I.e. the phone

 

and 2. the Service agreement (your contract with the network).

 

Problems with no1 do not negate your responsibilities with the network. You still have the SIM card which means you can still use the service.

 

They are fulfilling their part of the SOGA and you are refusing, you will wind up the one who is out.

[Going Down]

They are fulfilling their part of the SOGA and you are refusing, you will wind up the one who is out.

 

How are they? I am not in possession of a working handset. My understanding is that their responsibility under SOGA is not negated by them offering a different product, they have to provide the one I purchased.

 

Where do I have 2 contracts? I have one that came with the phone and it specifically links the phone and tariff together. They may have separate terms and conditions, but they get trumped by consumer law.

 

Yes I have a sim card, but as they have failed to provide a working handset, that sim card is of no use, therefore they are not meeting their obligations under the contract.

 

I'm just going to cancel it and see if they want to take me to court, where I feel confident enough that I can prove they have failed to provide the service I signed up for. That said I might do a moneyclaim against them.

 

you will wind up the one who is out.

 

No I wont however, I'd rather sort it amicably.

[Going Down]

I've just found this on Norfolk Trading Standards website

 

Option 2 (only for phones bought after 30th March 2003)

• Consumers can ask for a repair or a replacement so long as their choice is reasonable. If neither choice is practical (e.g. a repair would take too long or the phone can’t be replaced) they can

• Ask for a reduction in price (the customer keeps the phone and you refund any unused airtime) or they could back out of the contract altogether (they give the phone back).

 

It seems Norfolk TS agree with me

[Going Down]

Update:

 

I've spoken to Consumer Direct and they have said the following:

 

The handset and tariff are NOT separate under consumer law, the handset whether paid for or free was an inducement to enter into the contract and is therefore part of the deal.

 

If a repair or replacement is not "lasting and effective" which 4 replacements in 14 days clearly is neither lasting or effective then I have the right to cancel the contract.

 

It is not covered by the Sale Of Goods Act, it's actually covered by the Supply of Goods and Services Act 1982.

 

I have been advised to write to them by recorded delivery telling them as the handset is faulty and they have been unable to provide a lasting and effective solution they have failed to honour their commitment to the contract under the Supply of Goods and Services Act 1982 and I require the contract to be cancelled with immediate effect. They are also sending me a template letter to help.

 

If they refuse I can report them to my local trading standards who will investigate and I could in theory take Orange to small claims court to claim compensation.

 

I hope this information helps someone else in the future rather than accepting this bull about the handset and contract being separate things.

[ErikaPNP]

That's very interesting - best wishes, let us know how you get on.

[lorrie36]

I would just like to say,this is exactly what has happened to me,and i am in the process of writing my secound letter and sending via recorded delivery.

Mine is with phones 4u and o2,so you must let me know how you go on.

[Going Down]

Just remembered this thread

 

I have been living abroad and had many many many letters, doorstep visits and telephone conversations.

 

We are at stalemate right now and the debt collection agencies know it as Orange are getting through one every six weeks

 

Conversation normally goes along the line of:

 

DCA "How do you intend to pay"

Me "I have no intention of paying a penny"

DCA "but you owe it"

Me "no I don't because the handset was an inducement to enter a contract and the failure to provide a lasting and effective solution to a fault breaches the contract, therefore I woe nothing and will never pay"

DCA "but, but you owe it and we'll take you to court"

Me"great because when we get to court I will prove my case, win, claim back the money I had already paid, then claim compensation for harassment by you, let me know what date please"

"Oh and even if I lose, I am no longer resident in the UK so you can't enforce any judgement which might be issued, either way, you're getting no money"

 

Wait a fortnight for a new DCA to write.

 

Orange know they can't win, the DCA's know they can't win and if I were living in the UK I'd actually be tempted to take them on further, for now I just enjoy taunting them.

 

GD

[Human Writes]

Lets hope you don't have to return to the UK anytime in the next six years and require credit because Orange will have destroyed your creditworthiness