Commercial equipment issue

[Pyyp23]

I had an extractor fan installed in a commercial property around 20 months ago. This is an item that i would expect to last 7-10 years. It has now developed a fault but the installation company doesn't want to know.

Now i've been led to believe that the sale of goods act doesn't apply to commercial premises.

 

So heres my question. What can i do? A replacement will cost me thousands. And i'm struggling to find anybody who can repair it locally.

Thanks for any advice you can give.

Regards,

Pete

[MARTIN3030]

What is it thats failed just out of curiosity?

[MARTIN3030]

Have a look here-its quite an old thread but very informative.

http://www.consumeractiongroup.co.uk/forum/showthread.php?117106-Sale-of-Goods-basic-guide-to-rights-and-obligations

[Pyyp23]

What is it thats failed just out of curiosity?

 

It hasn't failed outright but is currently only working at slower speeds. When the speed is turned up the fan vibrates badly and smoke seems to be pushed back into the kitchen.

We're quite far away from the intallation company's base so i feel he's trying to dodge his responsibilities.

If it was a domestic item i'd just throw the sale of goods act at him but its commercial.

[MARTIN3030]

Are you a sole trader/partnership or what ?

How was it paid for-I mean was there any finance involved-this would have made it an agreement under CCA

[Pyyp23]

Are you a sole trader/partnership or what ?

How was it paid for-I mean was there any finance involved-this would have made it an agreement under CCA

 

 

We're a limited company. Paid by cheque. All in one go.

[Pyyp23]

Are you a sole trader/partnership or what ?

How was it paid for-I mean was there any finance involved-this would have made it an agreement under CCA

 

 

We're a limited company. Paid by cheque. All in one go.

[Kraken1]

what did the ts and cs of the sale say?

[Pyyp23]

There wasn't any ts & cs.

I arranged for an entire kitchen to be fitted by this company.

They've essentially bought the fan from another company and then fitted it.

all i have is an invoice.

 

Where do i stand?

Is there any legislation that requires him to sort out the problem?

Does the sale of goods act apply?

Or do i just have to take it.

[perplexity]

Section 1(1) of the Sale of Goods Act:

 

Contracts to which Act applies.

 

This Act applies to contracts of sale of goods made on or after (but not to those made before) 1 January 1894.

If the fan is to blame, the supplier of the fan should sort it out.

 

It's a consumer contract if you're buying something to set up or run a business, but not if it's purchased in the course of the business in operation. Section 210(4)(b) of the Enterprise Act defines the relevant condition:

 

(b) the individual receives or seeks to receive the goods or services with a view to carrying on a business but not in the course of a business carried on by him.

That could exclude a business in the habit of buying fans to install them, so you'd be better off to have bought the fan if your usual business is not to buy fans.

 

Part 5A of the SOGA would not thus apply but the thing should still conform to description and be fit for purpose and if it's not the supplier is liable.

 

8)

 

.

[Kraken1]

ignore perpy. the rest of us do. he's odd.

 

The SoGA doesn't apply to the fan, as you didn't buy it. if there was a manufacturers guarantee then you might be able to take advantage of this. The SoGA doesn't apply to the kitchen as this would be a supply of goods and services, hence the law you need in the supply of goods and services act. the clue is in the title.

 

Many of the provisions of the SoGA and SGSA can be excluded by a trader if reasonable and if it is in their t's and c's, are you sure there is nothing on the invoice that says 'subject to x ltd ts and cs' or similar?

 

If not then your claim is simple contract, cost of repair probably or a contribution towards the cost of replacement. Are you sure this should last longer? how many hours a day is it used? was it a commercial installation? what sort of kitchen is it? what did the seller know about your use when you ordered the kitchen?

[perplexity]

The Sale of Goods Act applies to the fan because it was bought, strangely enough, if the purchaser cares to take it up with the original supplier of the fan.

 

If the firm hired to install the fan bought the thing from the original supplier, then it is down to them to complain to the original supplier, obviously enough.

 

In the mean time, if the fan arrived because of a goods and services contract, then the Supply of Goods and Services Act 1982 applies and the principle is the same. Rather than call yourself the buyer of the fan you are then the “transferee”, a person to whom the property in the goods is transferred under the contract.

 

The relevant rights and duties with regard to the goods are then equivalent to the relevant provisions of the Sale of Goods Act, except for "express agreement, or by the course of dealing between the parties, or by such usage as binds both parties to the contract."

 

But for such an exclusion, the transferee is entitled to a repair or replacement, as per section 11N of the Act when the goods are not fit for purpose or not as described.

 

8)

[Kraken1]

and so perpy googles, realises that he cited the wrong statute, and back peddles. I'm sure soon he'll post acknowledging the fact that citing the wrong law tends to damage a complaint. Soon we might get some basic contract out of him. The SoGA applies because someone bought the fan? What a giggle. What a rogue that Perp is...

 

Still, it is progress I suppose. At least we haven't had the interpretation act, or obscure and irrelevant EU directives. Yet.

[perplexity]

EU Directives are the superior authority and evident, not at all so obscure except for the deliberate ignorance of those so determined to be so silly about it.

 

As it happens, sections 3 to 5, 11C to 11E, 11M, 11N and 11P to 11S plus 13 of the Supply of Goods and Services Act, implement the same Directive 1999/44/EC as sections 13 to 15 plus Part 5A of the Sale of Goods Act, relevant to the issue.

 

To study the essential principles you may just as well then proceed directly to the recitals of the said Directive:

 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0044:EN:HTML

 

Thanks for the suggestion.

 

My previous advice stands. If the fan is to blame, the supplier of the fan should sort it out. It is inconvenient that the fitter of the fan is caught in the middle but that should not be an impediment to the achievement of a remedy.

 

Section 210(4)(b) of the Enterprise Act also applies equally, whichever is invoked, the SOGA or the SSGA.

 

If the name of the eventual user of the fan happens to be included as a part of the contract of sale (perhaps as a person to deliver the fan to) it is possible to enforce a contract of sale as a third party because of the Contracts (Rights of Third Parties) Act 1999.

 

[Kraken1]

You are hawling your usual brand of trash. Eu directives are technically superior, but not in practice. This is why there are two different types. Do you need me to explain the difference between maximum and minimum harmonisation? Or would you like to explain why the law in EU directives is not always the law in the UK?

 

Any decent UK practitioner, and I accept that you are neither, will always start with UK law and case law.

 

"My previous advice stands. If the fan is to blame, the supplier of the fan should sort it out. It is inconvenient that the fitter of the fan is caught in the middle but that should not be an impediment to the achievement of a remedy."

 

How? What law makes him liable to the ultimate consumer, save for any guarantee he offers? As for CROPTA, don't make me giggle. This shows your lack of practical experience with these type of contracts. And before you ask - I've dealt with thousands of real disputes with real people where there are real consequences and real claims.

 

As for the enterprise act trash, the whole board, and I dare say every other consumer law practitioner in the country you have come across, and every single text book, law lecturer, judge, lecturer and mammal takes the view that you are stupidly, and arrogantly wrong. Please stop peddling advice that is designed to cause posters loss, heartache and misery. You are a complete liability - the rest of us either keep silent or admit it when we err, for some reason you persist in the strange and corrupt view that if you say something enough, it will become true. Why? Is your sole aim to hinder? You keep silent on your motives, your experience, your qualification, and pop up regularly to abuse poor posters seeking advice. Why? What is missing from your life that you feel this urge to misdirect? You are a sandwich, piece of cake and salad short of a picnic and I wish you good night!

[perplexity]

Do you need me to explain the difference between maximum and minimum harmonisation? Or would you like to explain why the law in EU directives is not always the law in the UK?

 

 

I had already suggested that to study the essential principles you may just as well proceed directly to the recitals of the said Directive, e.g.

 

(2) Whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is guaranteed; whereas free movement of goods concerns not only transactions by persons acting in the course of a business but also transactions by private individuals; whereas it implies that consumers resident in one Member State should be free to purchase goods in the territory of another Member State on the basis of a uniform minimum set of fair rules governing the sale of consumer goods;

 

The relevant information is also readily available online to explain that the law in the EU Directives is the law in the UK because of the Treaty on European Union, the primary source, hence Article 288 of the Treaty on the Functioning of the European Union.

 

In the event that a member state fails to implement a directive that may then, therefore, be a matter for the European Court of Justice but with the UK it doesn't happen.

 

Here is how it works and the record of implementation:

 

Every two months, the Commission verifies the measures taken by the authorities in each Member State to incorporate EU directives into their law. EU directives are a form of EU legislation which contains deadlines for the implementation ("transposition") of the rights and obligations in the directive into the law of the Member States. Implementation into the law of the Member States fulfils the purpose of ensuring the full availability of those rights and obligations to citizens and enterprises.

 

If the Commission finds that a Member State has failed to notify a measure implementing a directive, it opens an infringement case for 'non-communication'. The Commission publishes information on the number of notifications received from each Member State incorporating EU directives into their law.

 

The letter of formal notice is the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations within a given time limit on an identified problem regarding the application of Community law. The 'reasoned opinion' constitutes the second stage in the procedure, before referral of the case to the European Court of Justice for a ruling;

---

EU directives are technically superior in practice because the ECJ is also expected to rule when a high court of a member state requires a clarification (as with eBay versus L'Oreal not so long ago) or is appealed against.

 

8)

 

We've not so much as been told if the supplier of the fan was in the UK or abroad, anyway. The often supposed autonomy of UK law is a thing of a bygone age.

 

[MARTIN3030]

Ok lots of posts-I guess the OP will have to decide at the end of the day-certainly they will be wondering.

[Kraken1]

Do you need me to explain the difference between maximum and minimum harmonisation?

 

It would seem that is a yes then?

 

Or would you like to explain why the law in EU directives is not always the law in the UK?

 

And that is a 'no' then?

[perplexity]

I forgot to post the link to the web page:

 

http://ec.europa.eu/community_law/directives/directives_communication_en.htm

 

Of all the sites on the Internet, europa.eu is one of the most comprehensive, easy to navigate and comprehend that I have ever discovered and the facility is provided, along with the relevant legal provisions at some considerable expense, so it's a shame to fail to use it.

 

Here is fairly comprehensive account of the way the laws work:

 

http://www.europarl.europa.eu/parliament/expert/displayFtu.do?language=en&id=74&ftuId=FTU_1.2.1.html

 

If there is something incorrect or missing that we should rather need to know, or is inadequately explained by what is currently available I suggest to get in touch to make a complaint:

 

http://ec.europa.eu/contact/guide_activity_en.htm

 

http://europa.eu/legislation_summaries/contact/index_en.htm

 

For my own part, I have no complaint to make.

 

8)

[Kraken1]

so is EU law ALWAYS the same as UK law? Yes or no answer please.

[caro]

No

[perplexity]

It could also be noted that

 

The laws, regulations or administrative provisions of an EEA State which give effect to a listed Directive provide additional permitted protections if they provide protection for consumers which is in addition to the minimum protection required by the Directive concerned, and such additional protection is permitted by that Directive.

but if you'd rather not know about the "enterprise act trash" you would not have got as far as section 212(2), intended to tell you that.

 

[Kraken1]

That isn't an answer Perpy - is the law in the EU always the same as that in the UK?

 

That surely is a really easy question, Caro, had no problem in answering. Can you?

 

Yes or no answer. I'll even help with a bit you can cut and paste if you'd like:

 

"EU law is always the same as UK law"

 

"EU law is sometimes different to UK law"

 

there you go, just pick your phrase and paste it into the thread. there's a good boy. If you can't answer the question, because you don't know, feel free to just say so.

[perplexity]

For as far as I am aware the assertion that "the law in the EU is always the same as that in the UK" is a complete novelty, never previously ventured, so I would not presume to correctly guess as to what it intends to allude to. If there's a relevant point to make it might be better to make it instead of messing about.

 

If it means to allude to applicable laws particular to member states apart from the UK, section 212 of the Enterprise Act relates to that. If you buy from Germany, German law affords an additional protection, for example, and vise versa.

 

In my opinion it is misleading to say that the law in the EU is not always the same as UK law because it may be taken to mean that the legal order of the Union is not an integral part of the legal systems of the Member States, which of course it is.

 

P.S. With regard to additional rights, the relevant Directive 1999/44/EC is in any case clear enough:

 

Article 8

 

National law and minimum protection

 

1. The rights resulting from this Directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability.

 

2. Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.

 

Are you trying to tell us that Article 8 is not always the law in the UK?

 

I rather contend that it is.

 

8)

Edited November 29, 2010 by perplexity
P.S.

[Kraken1]

You said:

"EU directives are technically superior in practice"

"the law in the EU Directives is the law in the UK because of the Treaty on European Union"

 

So then, once more, very simple question, based on your assertion - in practice, is the law in the EU always the same as that in the UK?

 

Yes or no. Is that really so hard?