Faulty/damaged new laptop, won't repair.

[Dewyan]

I purchased an Acer laptop a couple of weeks ago which was delivered and at first appeared ok. Four days later I purchased a couple of usb items from the same company but collected them in person. Later in the day I found that neither of these worked on 2 of the 4 usb ports, nor did anything else. I phoned the company for advise and they suggested that I brought it in to them.

 

I took the laptop in and they put a usb thing into the ports and it fitted in ok but didn't. They then took the laptop into their worktop and came back a few minutes later with a magnifying glass to show me that I had broken the 2 ports and they therefore didn't want to know. I insisted that I had not caused any damage and that the items plugged in properly, I am well aware of how to fit a usb item and that it must have been damaged when I got it. They said that their terms and conditions stated that any damage had to be reported within 24 hours. However, I had not tried these ports until I bought the extra bits 4 days after delivery (inc weekend) and had rung to say they wouldn't work that day. I am also not in the habit of inspecting goods with a magnifying glass. When I took it back I had owned it for 6 days.

 

I was not made aware of the 72 hr damage reporting terms and conditions as I had ordered by phone and not internet, the conditions were not printed on their invoice nor was I advised by phone and I wouldn't have found this problem anyway. I had also taken the precaution of buying an extended warranty but it seems that this doesn't cover accidental damage anyway and that the laptop now needs a new motherboard at a cost of at least £200. Even if I had damaged it myself, it would seem rather too easy to virtually write the thing off by damaging a usb port and it is therefore unfit for purpose.

 

Where do I stand on this?

[buzby]

Not on an unfit for purpose claim, that'll be dead in the water. It is true abuse is not covered, but the issue is how do you prove this?

 

There is room for doubt, and it would not matter if they stated you had only 72 hours to check it out - under SOGA you have a 'reasonable time'. BUT, you'd have to prove that they gave you a faulty machine from the outset, and this will be hard to prove.

[Dewyan]

Not on an unfit for purpose claim, that'll be dead in the water. It is true abuse is not covered, but the issue is how do you prove this?

 

There is room for doubt, and it would not matter if they stated you had only 72 hours to check it out - under SOGA you have a 'reasonable time'. BUT, you'd have to prove that they gave you a faulty machine from the outset, and this will be hard to prove.

Yes it will but, who has to prove it and how? If I had pointed this out within their stipulated 72hrs, what difference would it make?

 

Incidentally I bought several hundreds of pounds of other stuff at the same time, this was less than half of the total sale, had I known they would take this stance, they would have got the lot back within 7 days.

[buzby]

Was thr item you bough from a sealed box? Or could it easily have been mucked around with in the stock room?

 

Did it boot up as a new machine should? If you can throw suspicion on someone having it before you, and perhaps returning it as a 'bought in error' after they wrecked it - you've a chance....

[Kraken1]

the issue is proof, and it is their job to prove that it was ok when you bought it. that said, with problems like this it isn't clear cut and they really just need to show that it is most likely that it wasn't damaged when you got it.

 

On balance, do you think you can do so? How obvious is the damage? What is the nature of it? Is it the usb - device connection, or the usb port - mother board connection? How easy would it be for them to show that you did it? Have you googled to see if anyone else has had this problem? Is the damage as would be expected if you'd forced a usb plug in the wrong way?

 

I think the 72 hours thing is trite. You have a reasonable time, and that is a question of fact. considering that this is a peripheral thing, I don't think a reasonable time has elapsed in this case.

[Dewyan]

Was thr item you bough from a sealed box? Or could it easily have been mucked around with in the stock room?

 

Did it boot up as a new machine should? If you can throw suspicion on someone having it before you, and perhaps returning it as a 'bought in error' after they wrecked it - you've a chance....

The laptop was in a brown sealed box from the supplier which had an Acer box inside which wasn't sealed. These boxes were in a bigger box with the other stuff I ordered. It doesn't say Acer on the outer box and the laptop itself was not in a sealed bag. When I looked at the programs there are some game programmes which were installed last September, there is no mention of whether or not these are part of any package.

[Dewyan]

the issue is proof, and it is their job to prove that it was ok when you bought it. that said, with problems like this it isn't clear cut and they really just need to show that it is most likely that it wasn't damaged when you got it.

 

On balance, do you think you can do so? How obvious is the damage? What is the nature of it? Is it the usb - device connection, or the usb port - mother board connection? How easy would it be for them to show that you did it? Have you googled to see if anyone else has had this problem? Is the damage as would be expected if you'd forced a usb plug in the wrong way?

 

I think the 72 hours thing is trite. You have a reasonable time, and that is a question of fact. considering that this is a peripheral thing, I don't think a reasonable time has elapsed in this case.

Neither of us can prove it, it is my word against theirs, that's the problem. The damage was not obvious at all as the usb plugs went in easily, they just didn't work. It was only when the guy in the shop looked with a magnifying glass that I could see some of the contacts were bent. I don't see how it is possible to break these unless something like a screwdriver is put in, it certainly wouldn't be possible to do it with a usb plug the wrong way round, that would require considerable force and would completely break both ends. I took the usb peripherals with me and they accepted they were not damaged at all.

 

I have just tried to force an old plug the wrong way round into a scrap device I have and it isn't possible and is designed for that reason.

 

Acer have told me that it won't have been them and that the only way to repair it is by replacing the motherboard as these ports are an integral part of it.

[ltunstall]

You mention the Acer packaging wasnt sealed?? this normally has security tape along all openings?

 

And a quick question as to the game programs that were installed last september?? what are these games, if these are not standard issue games then you a case with it being a customer return!!

 

When you first booted the laptop up did you have to go through a setup ie language etc or did it boot straight to windows?

[buzby]

This was what I meant - did you get to select the Regional settings on boot up the first time? If not, this had already taken place, and evidence of the laptop having been used previously - if you can prove a file list with files that had a date of installation prior to your purchase date, it throws doubt on any claim that the item was new when you recieved it.

Edited March 31, 2010 by buzby

[Dewyan]

The laptop was in a box within a box, a perfect tight fit. The first box was sealed but not the second, that could be repackaged now and would look the same. the games are from Oberon Media, not sure if there is a tie up with Acer there.

 

I wasn't paying great attention to the finer points when I first booted it as I wasn't expecting cross examination and forensic tests against me by the supplier or to play games trying to catch the other out. Fact is that I know I haven't damaged this thing and I feel that the burden of proof should be on the retailer, I have done everything in good faith.

[buzby]

Hate to disappoint, but credibility goes to the core of the matter. People have been known to buy something. break it and return it for refund - the retailer unknowingly accepting the item for re-sale, leaving you with the problem.

 

As there is actual physical damage, the retailer doesn't have to prove it was working and undamaged, there is an expectation of this (when supplied direct from the manufacturer). It is this you need to cast doubt on - and the dates prove this (and will do so to the retailer in support of your claim). Since abuse negates the SOGA protection, you need these forensic measures to protect your interests.

[Dewyan]

Hate to disappoint, but credibility goes to the core of the matter. People have been known to buy something. break it and return it for refund - the retailer unknowingly accepting the item for re-sale, leaving you with the problem.

 

As there is actual physical damage, the retailer doesn't have to prove it was working and undamaged, there is an expectation of this (when supplied direct from the manufacturer). It is this you need to cast doubt on - and the dates prove this (and will do so to the retailer in support of your claim). Since abuse negates the SOGA protection, you need these forensic measures to protect your interests.

Yes, I do understand their point of view and I'm sure people try it on with them all the time but the fact is, I know I haven't damaged it and no one else has had their hands on it (since it was delivered). Somewhere down the line it has been damaged amd it seems that the retailer assumed it was ok when delivering it despite admitting not checking it themselves and put the onus on me to prove otherwise. To turn things around, how can they prove it wasn't damaged?

 

They used their 72 hr rule against me which implies that had I pointed this out within that time, they would have done something about it and therefore this sort of thing is possible but it makes life easier for them if they can plant the problem on the buyer through the (unenforceable) terms and conditions.

 

I can get it mended btw but that would probably invalidate the warranty and I don't see why I should have to.

[ltunstall]

Acer laptops do have demoware of oberon media games,its something to do with acer arcade!. Il look to see if any of the demos have been registered.

 

Was the packaging acer? the only box that would have been plain is the internal packaging!!

 

The only problem i see, is this laptop should have been tested at acer, and usb ports wouldnt get damaged in transit! that would be virtually impossible. i take it the two usb portsthat are broken are together?? are the pins that broken identical?? this could indicate manafacturer fault when being made

[buzby]

You say it was 'delivered' - was this as a result of you asking them to do so after purchasing in a shop, or did you order the goods and they were delivered as a result of your web or phone order?

 

If the latter case it true, the Distance Selling Regulations treump the sellers 72hrs claim and you need to ensure the goods are rejected and returned PDQ.

 

As I noted earlier, they do not have to prove anything - if they assert it was new in the box, you need to prove this is wrong, but NOT under DSR as you can simply reject the goods.

[Dewyan]

You say it was 'delivered' - was this as a result of you asking them to do so after purchasing in a shop, or did you order the goods and they were delivered as a result of your web or phone order?

 

If the latter case it true, the Distance Selling Regulations treump the sellers 72hrs claim and you need to ensure the goods are rejected and returned PDQ.

 

As I noted earlier, they do not have to prove anything - if they assert it was new in the box, you need to prove this is wrong, but NOT under DSR as you can simply reject the goods.

I ordered it over the phone, no visit or internet. Ironically I didn't originally intend to buy a laptop, I was buying some monitors. I told them I wanted to return laptop under DSR but they wouldn't do it. They do however have it on record that I returned after 6 days and I have written to them to that effect.

[Kraken1]

Neither of us can prove it, it is my word against theirs, that's the problem. The damage was not obvious at all as the usb plugs went in easily, they just didn't work. It was only when the guy in the shop looked with a magnifying glass that I could see some of the contacts were bent.

 

Whilst the burden of proof is with them this related to manufacturing problems, where there is physical damage then they have a reasonable argument. If they can show some sort of quality check to say it was ok they are sorted. I think this whole thing will come down to the probable cause of the damage.

 

If you ordered over the phone, was this through some general scheme (eg telephone ordering line) or just on an ad-hoc basis?

[buzby]

They cannot vary DSR on their whim. If you ordered and paid for over the phone, it applies. As they have it back, your next step is to formally request full repayment for the goods, and pursue them if they do not pay in a 'reasonable' time. An LBA sent by recorded delivery should get their attention, followed by Moneyclaim for the full amount of the goods.

[Dewyan]

If you ordered over the phone, was this through some general scheme (eg telephone ordering line) or just on an ad-hoc basis?

It was just the sales number I have used before.

[Dewyan]

They cannot vary DSR on their whim. If you ordered and paid for over the phone, it applies. As they have it back, your next step is to formally request full repayment for the goods, and pursue them if they do not pay in a 'reasonable' time. An LBA sent by recorded delivery should get their attention, followed by Moneyclaim for the full amount of the goods.

The company do not have the laptop in their possession, I still have it. They refused to take it back under DSR rules as they said I had damaged it. I took it away but told them that as I had attempted to return it under DSR rules, I couldn't be held within their timescale any more. I have written to them about it and gave them 7 days to respond. I wrote by email and registered post, they have acknowledged the email but made no comment as yet.

[Kraken1]

They cannot vary DSR on their whim.

 

Agreed, but if he has not taken 'reasonable care' of the goods (reg 16? 17? - can't be bothered to check) then he can't return under the regs.

 

I think the whole thing comes down to the nature of the damage, unfortunately.

 

as a thought, I know it is unpalatable to let it drop, but do you really need four usb ports? Won't the two that work be sufficient?

[Dewyan]

Agreed, but if he has not taken 'reasonable care' of the goods (reg 16? 17? - can't be bothered to check) then he can't return under the regs.

 

I think the whole thing comes down to the nature of the damage, unfortunately.

 

as a thought, I know it is unpalatable to let it drop, but do you really need four usb ports? Won't the two that work be sufficient?

I have taken reasonable care of it and it is still in it's sticky protective film. I did check it over when I opened it but not with a magnifying glass. When I put the usb peripherals in I initially thought the problem was with the peripherals and certainly not the sockets themselves. I don't think it is possible to check all the ports, it has all kinds of other ports on it as most computers do, they may be faulty too, I can't check them as I don't have anything to fit them.

 

Yes I can manage without the ports as I have a hub but that isn't the point and like others on this site I am not inclined to lie down and let companies do this sort of thing with impunity. Had I damaged it myself I wouldn't have asked for advise on this forum.

[Kraken1]

fair enough, but circumstances being what they are, I think you are going to be tasked with proving that they you didn't damage them. Hence the nature of the damage is important.

 

As for the reasonable care - it is tied into the above. it is all quite circular really. If you can show that you didn't damage it then you get the benefit of the SoGA and the DSRs. If you can't then you get neither.

 

In your situation I would perhaps assert your SoGA rights, put the burden on them and seek an explanation as to why it is not their damage, and then rubbish that claim in court.

 

I'm guessing that this will work something like:

 

You - it's buggered

them - yep. You buggered it.

you - no I dint. It were like that when I got it. You need to prove that the goods were of satisfactory quality when they left you, I refer you to SoGA s48A(4).

them - Tosh. you can see that xyz has been done to it. that were you.

you - that is codswallop, sir. You are a scoundrel and blaggard and you have established nothing, beyond making scurrilous accusations. I put you to proof, sir!

them - huwah? Brain hurts. You buggered it up. Obvious, innit. Now **** off

you - I shall raise this with your seniors, good day!

 

You'll then take their reasoning that you did it, rubbish it, or at least show that it was unlikely to be the case on the balance of probabilities, and will write to HO legal dept in these terms with a LBA. They'll ignore you. You'll give them 14 days to respond positively. they'll get lost looking for the toilet and won't respond. You'll sue and they will probably not respond, or will settle at that point. If not you get to court and show the judge that your explanation for the damage is more likely than theirs and he gives you your money back. If the problem is that the ports have been physically damaged by an external something then you might struggle unless you can show that the laptop was used by someone else before.

 

time for whole process - maybe 6 months.

[Dewyan]

fair enough, but circumstances being what they are, I think you are going to be tasked with proving that they you didn't damage them. Hence the nature of the damage is important.

 

 

 

time for whole process - maybe 6 months.

Thanks for taking the time to write that amusing, though if I may say, somewhat cynical post.

 

I have taken these types on before and they usually back down at the last minute. Fortunately this problem is not really inconvenient and so I may take it to the bitter end purely as a matter of principle. If a judge goes their way, so be it but they won't be getting any more business from me or my acquaintances which will cost them more than this laptop. I'll tell you who they are when/if it gets to that point.

[perplexity]

"attempted to return it under DSR rules,"?

 

The DSR rule is that a buyer who cancels the contract is not obliged to return the goods:

 

(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

Statutory Instrument 2000 No. 2334

 

 

 

Rather than argue about the broken object I would be threatening the seller with a prosecution under the Consumer Protection from Unfair Trading Regulations 2008 because of his illegitimate terms. The Distance Selling Regulations oblige a supplier to inform the consumer that the right to cancel the contract exists, which is to suppose that when a consumer has to turn up here to find this out he was therefore mislead, and that's a criminal offence, in so far as a commercial practice "causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise".

 

The Consumer Protection from Unfair Trading Regulations 2008 No. 1277

 

[Kraken1]

Personally I wouldn't make empty threats. You are not going to prosecute them so don't threaten to. Also I doubt that the lack of cacellation rights would be said to effect a transactional decision.