Pram costing £815 faulty after 3 months, do i have the right to a refund??

[GRACIEAVA]

Hi everyone, i was just doing some research on SOGA and came across this site. i would really apprieciate any help and advice as im starting to feel like giving up.

In december 2011 i purchased a pram from a local independent nursery shop. It was meant to be a top of the range pram (Icandy) that to be honest we couldn't really afford but thought it would save us money in the long run as it would last and we would never have to buy another pram. It is a pram that can convert from a double to a single but after my baby was born in Dec my toddler decided she wanted to walk short distances so i was just using it as a single unless we went further than the shops, i also never folded it up as i don't drive. I am just pointed this out as i didn't really heavily use the pram to it's full capacity (ie. with 2 3yr old toddlers in it)and really looked after it as it was soooo much money.

then in the middle of march i was walking with my baby in it and the handle started to feel loose so i rang the shop and they said to bring it in. The next day the handle fell apart in to 2 pieces, the whole chassis of the pram felt loose and like it could collapse at any moment just with a baby in it, and would have been dangerouse with my toddler in it aswell. I took it back to the shop and told them that i wanted a refund as i no longer trusted the brand. They said they would send it to Icandy to make sure it hadn't been misused or 'hit by a bus' unbelievable! And that Icandy had a 48hr repair and return system. they then dragged out some manky old buggy to put my baby in, i refused and they gave me an Icandy chassis to put by pram seat on which i was happy with.

They rang me 2 weeks later saying the pram had been fixed for me to pick up (this proves to me how badley faulty the pram was as it took them so long to fix not 48hrs). At this point i said i wanted a refund and they just kept putting me off saying the manager wasn't there.

I then sent them a letter asking for a refund, stating SOGA and saying that i would take them to a small claims court. They sent a letter acknowledging my letter then i didn't hear from them for a month so i sent another letter which they have ignored. sorry for such a long post but just want you to know all the facts. Also i paid on a visa debit card. Thanks,

[rebel11]

Hi grace

 

Welcome to CAG

 

In March if you had contacted your Credit Card / Debit Card company to do a Chargeback, but the time limit has passed. The other thing is by letting them fix it, you accepted a 'repair'.

 

Have a read of 12 and 13 in my signature.

 

12) SOGA SUMMARY CLICK HERE

13) WHICH? TEMPLATES CLICK HERE

 

If there's a 'Health and Safety' issue and it could effect other consumers contact 'Trading Standards'.

 

'The next day the handle fell apart in to 2 pieces, the whole chassis of the pram felt loose and like it could collapse at any moment just with a baby in it, and would have been dangerouse with my toddler in it aswell.'

Please let us know how your problem has been resolved, it could help fellow Caggers.

[GRACIEAVA]

Thanks for your reply rebel11. I didn't actually accept a repair, when i took the pram in i said i wanted a refund and they said they would have to send it to Icandy to check how it had been damaged before they could make a decision on a refund. she actually said that Icandy have machines that can test how a pram was broken!! then when they rang me to tell me it was back and repaired they just acted like that was all we talked about and they didn't know anything about a refund they also didn't mention what the magic machines Icandy have had shown them about how i had broken the pram! I believe the fault was to bad to fix and a safety issue. I have a video and photographs of it. They have basically been polite but totally ignored my request for a refund.

Do you think it is fair to expect a refund in this case?

Do you think i stand a chance in a small claims court?

surely if i've spent that kind of money on a pram (they are usually £200-£400) i can expect a few years of use without these kind of problems?

[blitz]

You don't accept the product by accepting a repair (s13(6)) however the argument is with this part of the SOGA

 

13 (4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.

 

The above clause does not take into account cost as s13 does, and in my personal opinion for an item that you use daily you would have accepted it during the first 3 months so therefore only entitled to a repair or replacement (depending on which one is more cost effective to the retailer).

[rebel11]

Hi Gracie

 

Let me put it another way, if the matter goes to court, the court could deem that you've agreed to the 'repair'. The product shouldn't have failed after just three/four months considering they told you it's a quality product, there's also the 'Health and Safety', potential risk that if it happens again - the carriage could collapse. So, yes I do think it's fair to expect a 'Refund'.

 

Write a futher letter highlighting that when the 'pram' failed in March you requested a refund,

that the product should not of failed so soon after purchase, contact Trading Standards get them to look into the potential 'Health & Safety' concerns that you have, try to get a reference number that you could add to the letter, write that reference number on the letter, i.e. Trading Standards Ref:- xxxxxxxxxxxxx, mention that you've contacted 'Health & Safety' and that they are looking into the matter. Quote the relevant sections of SOGA that are relevant in your case. Tell them you will take further action, send it 'Recorded'. You can copy the passages below:-

 

'Wherever goods are bought they must "conform to contract". This means they must be as described, fit for purpose and of satisfactory quality (i.e. not inherently faulty at the time of sale).

 

Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description.

 

Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety.

 

If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

 

After six months and until the end of the six years, it is for the consumer to prove the lack of conformity.'

 

Use and amend the first Template letter in no.13 in my signature.

 

Thanks for your reply rebel11. I didn't actually accept a repair, when i took the pram in i said i wanted a refund and they said they would have to send it to Icandy to check how it had been damaged before they could make a decision on a refund. she actually said that Icandy have machines that can test how a pram was broken!! then when they rang me to tell me it was back and repaired they just acted like that was all we talked about and they didn't know anything about a refund they also didn't mention what the magic machines Icandy have had shown them about how i had broken the pram! I believe the fault was to bad to fix and a safety issue. I have a video and photographs of it. They have basically been polite but totally ignored my request for a refund.

Do you think it is fair to expect a refund in this case?

Do you think i stand a chance in a small claims court?

surely if i've spent that kind of money on a pram (they are usually £200-£400) i can expect a few years of use without these kind of problems?

[labrat]

and unfortunatly under the sales of goods act it is the sellers decision to repair, replace or refund

 

i beleave from someone i know whos good with pushchairs that the icandy does occasionally have a problem with the front of the frame

 

its caused by the large silver block on the front that can be used to change from 3 wheels to 4 wheels, if this comes loose it can crack the frame

when one is purchased quite often people are warned to tighten this occasionally

 

if you could find out that it is that issue then maybe you could push for not fit for purpose as its a common issue

[GRACIEAVA]

thanks for replies but im confused. how can it be to long to request a refund when i reported the fault within minutes of it happening?

i have received a letter of them today:

dearXXXXX,]

we have had time to consider the points you have made and have contacted the local trading standards officer to apprise ourselves of our standing in this case and are now in a postition to reply in full.

we are under no legal obligation to refund you £815 for the pushchair which is still in our shop waiting for you to pick up. the period of time from your collection of the pram system and it becoming faulty is to long for you to demand a refund.

when you came into our shop on the 19th of march with the faulty pram chassis, we were under no legal obligation to offer you our shop display chassis as a loan but as an act of goodwillwe did and you accepted.we are still waiting for the peach chassis to be returned to us.

the point you make about having a replacement and not a repair is also not correct. we as a retailer have the right on the advice of the manufacterer to repair as opposed to a repolacement, if it is deemed more cost effective and the item is repairable.you state that the product was irrepareable, that was not the case.

yours sincereley

xxxxxx

 

what do you all think of this reply? it all just seems so unfair when i have forked out for what is meant to be one of the best pram on the market.

also in the letter they have actually called it a 'fault' not 'damage' surely this means they accept it is a fault not damage through wear and tear? any advice on how to proceed? thanks.

[rebel11]

All they've done is quote what Trading Standards have told them, I doubt they told them about the 'Safety' issue,

also so how much you paid for the product.

 

we have had time to consider the points you have made and have contacted the local trading standards officer to apprise ourselves of our standing in this case and are now in a postition to reply in full.

we are under no legal obligation to refund you £815 for the pushchair which is still in our shop waiting for you to pick up. the period of time from your collection of the pram system and it becoming faulty is to long for you to demand a refund.

 

What SOGA states:- If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

when you came into our shop on the 19th of march with the faulty pram chassis, we were under no legal obligation to offer you our shop display chassis as a loan but as an act of goodwillwe did and you accepted.we are still waiting for the peach chassis to be returned to us.

 

You need to point out to them, that this was a 'goodwill gesture' on their part, if they had offered nothing you would have just had to accept it and then made other arrangements.

 

the point you make about having a replacement and not a repair is also not correct. we as a retailer have the right on the advice of the manufacterer to repair as opposed to a repolacement, if it is deemed more cost effective and the item is repairable.you state that the product was irrepareable, that was not the case.

 

Point out the following:- Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety.

'Wherever goods are bought they must "conform to contract". This means they must be as described, fit for purpose and of satisfactory quality (i.e. not inherently faulty at the time of sale).

 

Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description.

[rebel11]

All they've done is quote what Trading Standards have told them, I doubt they told them about the 'Safety' issue,

also so how much you paid for the product.

 

we have had time to consider the points you have made and have contacted the local trading standards officer to apprise ourselves of our standing in this case and are now in a postition to reply in full.

we are under no legal obligation to refund you £815 for the pushchair which is still in our shop waiting for you to pick up. the period of time from your collection of the pram system and it becoming faulty is to long for you to demand a refund.

 

What SOGA states:- If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)

when you came into our shop on the 19th of march with the faulty pram chassis, we were under no legal obligation to offer you our shop display chassis as a loan but as an act of goodwillwe did and you accepted.we are still waiting for the peach chassis to be returned to us.

 

You need to point out to them, that this was a 'goodwill gesture' on their part, if they had offered nothing you would have just had to accept it and then made other arrangements.

 

the point you make about having a replacement and not a repair is also not correct. we as a retailer have the right on the advice of the manufacterer to repair as opposed to a repolacement, if it is deemed more cost effective and the item is repairable.you state that the product was irrepareable, that was not the case.

 

Point out the following:- Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety.

'Wherever goods are bought they must "conform to contract". This means they must be as described, fit for purpose and of satisfactory quality (i.e. not inherently faulty at the time of sale).

 

Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description.

 

Do a draft of the letter and post it up.

[GRACIEAVA]

thanks rebel11, what to you think of them referring to it as a 'fault' surely this means they accept it not my fault and therefore i deserve a refund?

 

labrat, do you know which model has the fault you mentioned? i have the icandy peach blossom 2011.

[blitz]

You are only entitled to a refund if you return the item back to the retailer within a short space of time (i.e the time it would take to use the product a few times is a good guide). In my opinion you wouldn't be entitled to a refund after 3 months, that's the legal position and not a moral one, the law states and not what you may or may not deserve.

[rebel11]

Where does it state '3 months'? You state, 'in my opinion', then you go onto state 'that's the legal position', which is it?

 

You are only entitled to a refund if you return the item back to the retailer within a short space of time (i.e the time it would take to use the product a few times is a good guide). In my opinion you wouldn't be entitled to a refund after 3 months, that's the legal position and not a moral one, the law states and not what you may or may not deserve.

[rebel11]

They've accepted that there's a fault with the product, but they don't want to refund.

 

thanks rebel11, what to you think of them referring to it as a 'fault' surely this means they accept it not my fault and therefore i deserve a refund?

 

labrat, do you know which model has the fault you mentioned? i have the icandy peach blossom 2011.

[citizenB]

You are only entitled to a refund if you return the item back to the retailer within a short space of time (i.e the time it would take to use the product a few times is a good guide). In my opinion you wouldn't be entitled to a refund after 3 months, that's the legal position and not a moral one, the law states and not what you may or may not deserve.

 

 

Blitz, if this is a legal position - can you please provide the evidence?

[MARTIN3030]

Sale and Supply of Goods to Consumer Regulations 2002

 

This Act amended the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. It added that manufacturers' guarantees were a contract between consumers and manufacturers.

It also says that, if a product goes wrong within the first six months, the onus is on seller to prove there's not a fault, rather than on the consumer to prove that there is one.

[blitz]

The two major avenues for a refund in the SOGA are as follows:

 

1) Rejection of the goods that do not conform to the contract that have yet to be accepted by the consumer.

 

2) Rescinding from the contract as per s.48C.

 

 

For each there are conditions applying the one you are asking me to lay out is 1)

 

for option 1) to be valid the goods must not conform to the contract (which they don't) and the customer must not have accepted them (Which I am arguing that its my opinion they have). Acceptance in the SOGA is outlined in s.35

 

35 Acceptance.

 

(1)The buyer is deemed to have accepted the goods [F35subject to subsection (2) below—

(a)when he intimates to the seller that he has accepted them, or

(b)when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.

(2)Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose—

(a)of ascertaining whether they are in conformity with the contract, and

(b)in the case of a contract for sale by sample, of comparing the bulk with the sample.

(3)Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.

(4)The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.

(5)The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.

(6)The buyer is not by virtue of this section deemed to have accepted the goods merely because—

(a)he asks for, or agrees to, their repair by or under an arrangement with the seller, or

(b)the goods are delivered to another under a sub-sale or other disposition.

 

Acceptance is there to allow a reasonable opportunity to examine the goods, for the item in question a pram, something use multiple times a week, it would not be unreasonable to assume that acceptance of the product would occur within a matter of weeks and not months. As such the right of rejection is lost and the OP can instead resort to using other parts of the act for remedies such as s.48 for repairs or replacements.

 

 

Note that 2) only qualifies if the product is not repaired within a reasonable amount of time, or if its cheaper to the retailer to repair.

 

[Edit] some additional information on acceptance if you would prefer to judge yourself

 

The part of the act allows flexibility as becomes a question of fact, which would include when did the consumer start using the product, when was the fault initially found, how long until the retailer was informed. Bernstien v Pamson Motors (1987) was found in favour of the seller after a car had been in use after keeping the car for 3 weeks. The judgement created alot of discussion on acceptance and the need to balance both the consumers right for examination and retailers avoiding recovery of full price despite goods being used for a considerable amount of time.

 

The only other major case was Clegg v Anderson was a Yacht rejected after 7 months, however there were special circumstances whereby the buyer had indicated that the goods did not conform to the contract on delivery. The buyer requested information and rejected the goods within 3 weeks of receiving this information.

 

Standard retailers these days take a month as a period of acceptance, this is obviously too short for a limited amount of goods but for the majority can be seen as a reasonable amount of time. For example a pair of skis which you have purchased pre-season might be rejected a few months later on their first use. Or a pen for example would be accepted within a matters of days of use.

Edited July 4, 2012 by blitz

[rebel11]

So it doesn't say 3 months anywhere and it's only your opinion. There is no law which states 3 months again as you say, 'retailers' might try to define a 'reasonable period', but the 'Act doesn't , what the 'Act' actually says 'If goods do not conform to contract at the time of sale, purchasers can request their money back "within a reasonable time". (This is not defined and will depend on circumstances)'. There is a very good reason for the Act not to define a 'reasonable' period because of the cases you've highlighted.

 

The two major avenues for a refund in the SOGA are as follows:

 

1) Rejection of the goods that do not conform to the contract that have yet to be accepted by the consumer.

 

2) Rescinding from the contract as per s.48C.

 

 

For each there are conditions applying the one you are asking me to lay out is 1)

 

for option 1) to be valid the goods must not conform to the contract (which they don't) and the customer must not have accepted them (Which I am arguing that its my opinion they have). Acceptance in the SOGA is outlined in s.35

 

 

 

Acceptance is there to allow a reasonable opportunity to examine the goods, for the item in question a pram, something use multiple times a week, it would not be unreasonable to assume that acceptance of the product would occur within a matter of weeks and not months. As such the right of rejection is lost and the OP can instead resort to using other parts of the act for remedies such as s.48 for repairs or replacements.

 

 

Note that 2) only qualifies if the product is not repaired within a reasonable amount of time, or if its cheaper to the retailer to repair.

 

[Edit] some additional information on acceptance if you would prefer to judge yourself

 

The part of the act allows flexibility as becomes a question of fact, which would include when did the consumer start using the product, when was the fault initially found, how long until the retailer was informed. Bernstien v Pamson Motors (1987) was found in favour of the seller after a car had been in use after keeping the car for 3 weeks. The judgement created alot of discussion on acceptance and the need to balance both the consumers right for examination and retailers avoiding recovery of full price despite goods being used for a considerable amount of time.

 

The only other major case was Clegg v Anderson was a Yacht rejected after 7 months, however there were special circumstances whereby the buyer had indicated that the goods did not conform to the contract on delivery. The buyer requested information and rejected the goods within 3 weeks of receiving this information.

 

Standard retailers these days take a month as a period of acceptance, this is obviously too short for a limited amount of goods but for the majority can be seen as a reasonable amount of time. For example a pair of skis which you have purchased pre-season might be rejected a few months later on their first use. Or a pen for example would be accepted within a matters of days of use.

[blitz]

Yes there is a good reason not to define the time, and in this case a reasonable person would judge that a reasonable time has passed to examine the goods, for which they are therefore accepted. Take a step back, remove emotion and what you want to happen, be objective and see the the different outcomes of pressing for a refund

 

1) Company gives in after LBA

2) Company gives in after MCOL

3) Goes to court judge deems that the OP has not accepted the product

4) Goes to court judge deems that the OP has accepted the product

 

Its great for the first 3 but the odds of option 4 happening costing the OP more time and money are higher then I would like. Major retailers with professional consumer law departments put acceptance down to 1 month, I am happy to suggest when this can be pushed beyond that, for an item used frequently this is not one of them.

[rebel11]

'In my opinion you wouldn't be entitled to a refund after 3 months, that's the legal position and not a moral one, the law states and not what you may or may not deserve.'?

 

Yes there is a good reason not to define the time, and in this case a reasonable person would judge that a reasonable time has passed to examine the goods, for which they are therefore accepted. Take a step back, remove emotion and what you want to happen, be objective and see the the different outcomes of pressing for a refund

 

1) Company gives in after LBA

2) Company gives in after MCOL

3) Goes to court judge deems that the OP has not accepted the product

4) Goes to court judge deems that the OP has accepted the product

 

Its great for the first 3 but the odds of option 4 happening costing the OP more time and money are higher then I would like. Major retailers with professional consumer law departments put acceptance down to 1 month, I am happy to suggest when this can be pushed beyond that, for an item used frequently this is not one of them.

[blitz]

What I am trying to say is that just because you think you deserve a refund doesn't mean you are...

[transient]

I am inclined to agree with Blitz here

[blitz]

Just a note there is little cost involved just the 14 days to sending an LBA, you might be lucky..

[ragsrule]

Donkeys years ago I bought an expensive pram from a well known mother & baby store.. just short of 2 years into having it things got loose and quite dnagerous so I went to the store with the receipt and spoke to them about a repair and costs etc as I was on a limited budget.. they went one better than that and said because the pram was under 2 years old I was entitled to a replacement.. joy or what, i was able to have another of the same which they stilll socked so I was over joyed as I was 6 months into a new pregnancy and did want to use the pram for this baby so new baby had a new pram...

You should have been entitled to at least a replacement if the pram wasn't up to standard no questions asked.. My pram was over £200. then so god knows how much it would cost now!

Stand up to them and tell them you are not happy...