Faulty/damaged new laptop, won't repair.

[perplexity]

This

 

The blacklisted practices in schedule one of the regs are strict liability offences, the general prohibitions you are citing are not.

 

is not the same as this

 

12.2 The offences are:

 

• contravention of requirements of the general prohibition –

see chapter 10 on the general prohibition

• misleading actions (except 5(3)(b) – code commitments) –

see chapter 7 on misleading practices

• misleading omissions (including the omission of specifed

information in invitations to purchase) – see chapter 7 on

misleading practices

• aggressive practices – see chapter 8 on aggressive

practices

• specifc unfair commercial practices (Schedule 1) apart

from numbers 11 and 28 – see chapter 6 on banned

practices.

 

12.3 The offences above are all strict liability offences, apart from contravention of the general prohibition, which requires proof of mens rea.

nor did I cite a general prohibition. Should you get as far as page 46 you will find that the OFT's advice is perfectly clear to the effect that

 

Regulations 3(1) and 3(3) of the CPRs set out the general prohibition on unfair business to consumer commercial practices, also known as the general duty not to trade unfairly.

distinguishing the two particular parts of 3, as distinct from 3(4) etcetera, including (2)(b) of section 6 which I specified.

 

I then proceeded to quote from 3(1) because it seems to me that the general prohibition covers this in any case, were it not that 2(b) specifies, but that is beside the point.

 

 

The Distance Selling Regulations are not then my advice; I am not the author of the Regulations, which I had already quoted and linked to. It is disingenous, to make an ad hominem of this when I had already quoted the relevant sections, word for word.

 

The OP should cancel the contract to claim the refund. The gist of the Regulations is that a buyer is entitled to do this without the need to get into any further argument about it, money back, argument about the condition of the goods done with, and I would confidently expect that a judge would be just as glad to keep it simple, should it come to that.

 

If he rather prefers to argue with the supplier over who is to blame, IMHO the supplier's version is dubious, to say the least. Except for extraordinary abuse a port should not have broken but it's messy to prove, one way or the other, not worth the trouble, nor is it likely that a supplier would counter claim, for the same reason.

 

Edited April 5, 2010 by perplexity
advice for OP added

[Kraken1]

Personally, I read the regs, not guidance, but I think you have just agreed with me? Not entirely sure. I must admit you have clear confused me as to your advice in this case. Bouncing around a bit left and right. If I'm confused i dare say others might be. So, please be clear, what is your advice then? What should the Op do?

[Conniff]

Perplexity, can you show the amendments you made to post #51

 

Last edited by perplexity; Today at 19:10.

[perplexity]

I belatedly added "OP should cancel the contract to claim the refund" etcetera, before I saw the next posting, but would rather not patronise or speculate.

 

I have a son who is an expert on this sort of thing, computer ports and so forth. I got him to read the original posting and he refused to venture a technical opinion, short of further information.

 

[Conniff]

Thanks for that - It's just that I am trying to follow the thread.

[Kraken1]

Thank you. That is clear.

 

Personally, I doubt that a claim under the dsrs will work, but we have differing opinions on that. The OP has a number of views and it is now down to him to decide what to do.

[perplexity]

Strangely enough, I am not so surprised that this is in doubt, for as long as you "can't be bothered to check".

 

That was your own admission, Kraken1, Ist April, posting #22.

 

Might I suggest that the better idea would be to check, every now and then?

 

 

That's why the Regulations fail to work, over and over again; for years on end the myths continue to circulate, for as long as nobody bothers to check, and then the cognitive dissonance ensues; they can't believe it could all have been so wrong.

 

[Kraken1]

No, I know the regs reasonably well, along with fairly decent contract, commercial and consumer law, and have worked with them for a long time. I'm fairly certain that they won't work in this instance unless the buyer can show that he did not damage the laptop.

 

We just have a differing of opinion on what the regs will mean in practice. the buyer has seen our views and it is up to him to decide what course of action he wants to follow. You never know, maybe he'll get lucky and the seller's legal dept will be idiots, won't defend or won't lodge a counter claim.

 

As for 'can't be bothered to check' if you re-read you'll see that this was to do with the reference for the duty to take reasonable care of the goods, not the principle. I know quite a bit about this stuff, I'm just not a walking encyclopaedia of references.

[perplexity]

For as far as I am concerned the object of the exercise is to eliminate opinion, it being that much easier to settle a matter of fact.

 

[Conniff]

There will always be opinion and more importantly 'interpretation'.

[Kraken1]

you are still wrong perpx.

 

1. I've explained what 210 means in relation to schedule 1. Your logic is back to front and you don't understand the purpose of the EA.

 

"The practical inference is that the doctrine of Judicial Notice removes the opportunity to dispute an issue. A judge need not oblige himself to hear the argument and there would then be no appeal against it.

 

For example this

 

Quote:

(4) References to a listed Directive must be construed in accordance with section 210.

trumps this

 

Quote:

Originally Posted by Kraken1

Schedule 13 itself lists the legislation the OFT and the like can actually enforce, that legislation is on no-way construed in accordance with s210."

 

If this is all true, how do you explain the banks charges case?

 

2. DJs often don't know the law. Shock, I know, but true. they will also often only look at what is pleaded or argued before them.

3. there is lots of case law on what different regs actually mean. just look at the recent glut in credit law. What the regulations mean is always down to an opinion.

4. "Cases would otherwise go to court where the buyer refused to pay because he wasn't told enough; a seller would then insist that an enforceable contract exists and the argument would then go on an on"

 

This happens all the time. You've just summed up the vast majority of commercial disputes. It is settled when the dj (or similar) gives his opinion on either the facts or often, the facts and what the law means.

[Kraken1]

I am not expressing an understanding of the Enterprise Act

 

Too true. Now we agree on something...

 

I am pointing out what the legislation says, word for word, because you seem to be unaware of that as a matter of fact.

 

And you seem to unaware of what those words mean, or that they are open to interpretation. Or that they are part of a wider picture where different law interacts with other bits of law. Choose pretty much any piece of case law and you'll see it debates the meaning of legislation.

 

It most certainly does not happen all the time that a buyer claims a refund because of DSR's right to cancel and the judge throws the Regulations out of the window

 

If the seller is acting as a consumer it does. That said, the rest of the world recognises that the dsrs don't apply where the seller is a consumer, and so these cases are not launched. Further, where consumers are daft enough to do so, if you know anything about the law you'll know why these cases are not reported, or are you suggesting that small claims track cases are routinely reported?

[Kraken1]

Sorry G, it is just that I object to poor advice - I don't want posters relying on it to their detriment and if it isn't challenged a reader might think it is right. You'll see from my other posts I'm happy to admit where I am wrong, or might be.

 

Here however, I'm not. The DSRs do not apply unless the seller is acting in the course of a business and the buyer is a consumer. this is what the regs say.

 

This is what ebay says (eBay UK - Business Centre - Law & Policies that affect you - Returns)

 

To suggest otherwise, no matter how you dress it up in red herrings and pseudo legalise is dangerous. My only consolation is that most posters won't even understand perpy's posts. The above post for example - generally irrelevant and makes no sense.

 

With regard to 212 etc, perpy doesn't understand what the enterprise act is for and thinks that it changes the way the legislation listed in the schedules works. It doesn't, it is simply an instruction book for how the oft (etc) need to use that legislation, or when they can. the enterprise act has very little impact on a claimants statement of claim or their case. I've never seen it cited.

 

he also thinks that 'reporting a case' in a legal context means one of the parties moaning about it on the internet, when the rest of the world considers such cases to have zero precedence value and look to the all england reports etc. what someone says on the internet is well known as a really reliable assessment of the legal issues in a case. Show me a report or transcript or I'm not interested. I'll base my advice on my opinion and experience having dealt with thousands of these type of consumer cases.

 

His points are generally raised to confuse, obfuscate and lead posters down the wrong road against their interests.

[Mr lex]

I am closing this thread for the time being. The O/P has not been back to CAG since the 2nd of April. I have asked the O/P to PM me when they have a result or if they would like it reopened.

 

Lex

[Mr lex]

On the OP's request I have reopened this thread.

 

I have also removed some off the off topic comments and less helpful posts.

 

Can we just help the OP out please.

 

Lex

[Dewyan]

Sorry I haven't commented for a week but I've been on holiday (without laptop). Thanks for your interesting comments but I really need to know how to proceed further without tying myself up in too many legal technicalities and risk tripping myself up.

 

Since I last posted, a third of the four usbs has stopped working and this does not appear to have any physical damage. Bizarrely one of the faulty ones did work for a brief period so this could change things somewhat. This tends to indicate there is a fault inside the machine.

 

Another issue which occurred to me was that I purchased an extended warranty with this computer which I have not yet registered at the suggestion of the retailer (who I still haven't heard from further) and I feel I should get a refund for that too since it seems pretty worthless as it doesn't cover accidental damage. I pointed this out when I was at the retailers complaining the other week.

 

It is my intention to write to the retailer again on Monday and turn the pressure up, how should I word it please?

[Conniff]

It is, because the OP isn't going to prosecute them. they know this. they'll also defend on the basis that they are denying his rights under the dsrs because he damaged it and any other inference was a misunderstanding.

When companies get letters with these sorts of threats they get 'filed' as it is a good indication the complainer doesn't really under his consumer rights. It is the difference between academic law and practice.

 

Further, for the regs you have cited there is no offence unless the omission etc caused the consumer to make a transactional decision he might not have made otherwise. This doesn't apply here. And it is not a strict liability offence.

 

"We wont accept it under regulations m'lud because he damaged it"

"How do you know he damaged it?"

"Because it wasn't like that when we sold it"

"How do you know it wasn't like that when sold, did you examin it beforehand?"

"No, but it was sealed when we sent it to him"

"So you can't say for definate that it wasn't like that when sold?"

etc;

[Kraken1]

"We wont accept it under regulations m'lud because he damaged it"

"How do you know he damaged it?"

"Because it was clearly external damage, and you can see that it was probably caused by jamming something in the port, probably forcing a usb plug into it the wrong way"

"How do you know it wasn't like that when sold, did you examin it beforehand?"

"yes. all machines are quality checked beforehand"

 

 

As I posted above, it all comes down showing the likely cause of the damage. With a third port dying with no apparent external cause, then it perhaps increases the OP's chances. It still comes down to him showing that the damage was there when he bought it.

[Conniff]

"yes. all machines are quality checked beforehand"

 

But there is mention of the box 'should be sealed' and the op says the box was sealed so how can they be checked?

 

So that should say "no, all boxes are sealed when received from the manufacturer and that is how we give them to the customer".

[Kraken1]

or 'they are QA'ed and then sealed for delivery'.

 

This was my experience in B2B sales, not sure about consumer though.

 

Kinda academic really, it is a dj that needs to be persuaded. I think there is an argument that needs to be dealt with though.

[perplexity]

The right to be reimbursed under the DSRs is unconditional.

 

That was explained by this press release, for instance, from the OFT:

 

Virgin Wine gives consumers fairer online deal - The Office of Fair Trading

 

The OFT had concerns that certain terms did not comply with the Distance Selling Regulations (DSRs) including those that:

 

• prevented re-imbursement following cancellation until certain conditions had been met. The DSRs give consumers an unconditional right to a refund following cancellation

 

With regard to the 72 hour damage reporting term please also note that the OFT had this deleted from a supplier's terms

 

Faulty goods will be exchanged if returned or notified within 7 days from the date of invoice and returned in original, clean and full packaging.

and this

 

… the Customer shall … give Maples written notice of such loss or damage with reasonable particulars thereof within 3 days of receipt of the Goods.

was changed to this new term:

 

You must tell us about any fault or damage as soon as is reasonably possible.

The OFT provides that information here:

 

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311annexes.pdf

 

I suggest to point it out to Trading Standards to get them to put a stop to it.

 

8-)

Edited April 11, 2010 by perplexity

[Dewyan]

"We wont accept it under regulations m'lud because he damaged it"

"How do you know he damaged it?"

"Because it was clearly external damage, and you can see that it was probably caused by jamming something in the port, probably forcing a usb plug into it the wrong way"

"How do you know it wasn't like that when sold, did you examin it beforehand?"

"yes. all machines are quality checked beforehand"

 

 

As I posted above, it all comes down showing the likely cause of the damage. With a third port dying with no apparent external cause, then it perhaps increases the OP's chances. It still comes down to him showing that the damage was there when he bought it.

I know for a fact that I haven't damaged this machine. I don't think that the damage has been caused by forcing a usb plug in the wrong way either. Only a complete moron would do that as it would require considerable force and would break the plastic lugs on the plug and the port making it imposible to then fit one in properly. As it is, a usb fits in comfortably, it just doesn't work because one of the pins inside is bent and so not all the contacts are meeting.

 

It would have been pointless to damage it deliberately in order to secure a refund, as cynically suggested earlier, as the retailer is obliged to make such a refund anyway under DSR and I didn't want a refund anyway, I want a computer that works properly.

[perplexity]

This is from the DTI's Advice for Traders:

 

"Reversed burden of proof"

 

However, in the first six months after the

sale, when a consumer seeks the remedies

of repair or replacement, or when these are

not practicable, partial or full refund, it is

for the retailer to prove that the goods

conformed with the contract in disputed

cases. This is known as a "reversed burden

of proof". ....

[Kraken1]

I've made my views and advice very clear. Good luck with getting it sorted.

[Dewyan]

Latest on this.

 

I sent a further letter with email copy to the company threatening legal action and they performed a complete volte-face and said they would credit my card immediately and collect the laptop at my convenience. Although an hour later when I rang with card details they then changed their tune and said they would credit when they had the laptop back

 

Instead of them collecting I took it back to the shop with a view to buying another one but the staff were so rude to me that I didn't. The money has now been credited to my card in full.

 

I can't understand why they have to put customers through this hassle other than playing the bluffing game which they must sometimes win.

 

Thing is, I have dealt with this company for years and recommended them to others but I don't feel inclined to do so any more. I have written regarding their rude member of staff and depending on their reply (if I get one) I will reveal who this company is.

 

Thanks everyone for your help.