Section 75 proving breach or misrepresentation

[juliusceasor]

Hello,

 

I recently purchased a gas boiler that was brand new but old stock and heavily discounted from 7k - 1.5k

 

On the face of it a great deal complete with warranty from a quality manufacturer,

on offer from a supplier I use at least once a year, this time for my personal property.

 

In a nutshell the boiler arrived minus gas shut off valve, minus controller, connection pipes and manuals, guarantees etc.

The boiler was being installed and was required urgently due to a new arrival,

this was made clear at the time of purchase and that time was of the essence..

 

It took numerous emails and calls and texts to get in dribs and drabs all the various components to enable the installation to be completed,

 

This was a 300kg boiler (domestic complete with cylinder in a single package -in case you're wondering).

 

Due to the missing parts the boiler took some time to install which increased costs

not to mention the inconvenience of all the chasing of the parts

and being without hot water and heating etc for the new arrival meant staying elsewhere.

 

I claimed for costs from the supplier/manufacturer (two different entities)

 

The manufacturer finally offered without prejudice another unit

but to remove the first one and then to have to dispose of it

and then install the second unit would have just increased costs further

so this was rejected (what am I going to do with 2 boilers 300kg each 2m tall 70cm square?.

 

My claim for costs is far less than the cost of the purchase about half.

 

A claim has been made against the CC under sec75 for the cost of the boiler and costs,

however they are stating that they are reliant on goodwill of the 3rd parties bank

and the retailer to respond as they need me to provide proof of breach of contract

or misrepresentation but have temporarily refunded the 1.5k only and wont entertain the consequential loss.

 

They go on to say they are totally reliant on the goodwill because the goods are in my possession

and there is no documentary evidence to prove the goods are faulty, therefore they can't guarantee the outcome.

 

The unit was supplied faulty by virtue the parts required for it to operate were missing surely it was faulty,

the correspondence covers this from both sides my raising the complaint and their accepting that parts were missing..

 

It seems clear to me there was a breach,

the goods were not as described ie a new complete boiler,

they were missing various components critical to the installation

and commissioning of the appliance, without them the boiler could not be fully installed or operated.

 

This is clear and accepted by the 3rd parties, that the missing parts and delays were unacceptable and the goods were not as described.

 

The CC has had copies of TCs and all email correspondence

some 30 pages of documents were sent and yet the CC is finding it difficult to establish documentary evidence of a breach has taken place.

 

The boiler is currently installed 6 weeks after its arrival

yet it is still missing the original manuals and warranty documents..

what are my options?

 

I am aware that deductions can be made for any use of the appliance subsequently..

[raydetinu]

seems a fair offer if they have refunded the your original 1.5K! and got a 7K deal.

worth the hassle to claim for more, doubt it. Court action next step if so inclined and let a judge decide.

[juliusceasor]

seems a fair offer if they have refunded the your original 1.5K!

 

They have only temporarily refunded the 1.5k subject to the goodwill of the suppliers bank approving. They should be refunding this under sec75 on the basis the product was in breach, not in feigning goodwill on the part of the suppliers bank who has not made such an offer, nor was one expected.

 

The question was what further proof does the CC require to show breach of contract? The item was not of merchantable quality or fit for purpose therefore under the sales and goods act as amended that is breach in itself. But the CC is implying that the goods have to be "faulty" to be in breach, in my opinion missing a controller and gas valve along with many other items the unit was faulty by virtue it was incomplete and couldn't be installed let alone be operated.

 

The initial good deal was not sold on the basis it was missing parts and therefore some how reduced, it was a new unit complete at a reduced price, which is not what I received.

 

I am not simply trying to get it for nothing. I want to recover the costs incurred in sorting this out, the extra costs involved in the numerous attempts at installing it, and the knock on effects that had to the build costs around the installation.

[steampowered]

Have you actually issued a court claim?

 

If so, what has the bank said in its Defence?

[juliusceasor]

Have you actually issued a court claim?

No I didn't issue a court claim I simply went down the route of a sec 75 claim against the credit card as jointly liable with the supplier, I felt this would be a simpler and faster solution to achieve recompense for the costs incurred.

Small claims court is an option but having purchased via a CC I believe the sec 75 route is more straightforward than the small claims court avenue.

 

What aspect have I failed to demonstrate a breach of contract by the supplier that the CC can fell justified not to uphold a breach of contract and rely upon the good will of the suppliers bank agreeing to refund the money to the CC, rather than stating to the suppliers bank that a breach of 75 has occurred and they are reclaiming the monies?

 

the CC said:

.. After reviewing the documentation provided, I appreciate the nature of your problem and empathise with your situation.

 

May I advise, in order to make a valid claim against CC, under sectio 75 of the Consumer Credit Act 1974, it would be necessary for you to prove a breach of contract or misrepresentation by the supplier, in a debtor-creditor-supplier agreement. For our purposes we need you to provide us with documentary evidence as proof that such a breach of contract or misrepresentation occurred.

 

We have made written representations on your behalf to the merchant's processing bank, in an attempt to bring this matter to a satisfactory conclusion. However, we are totally reliant on the goodwill of this retailer to respond because goods are in your possession and also there is no documentary evidence to prove that they are faulty. Therefore, we would not be able to establish a breach of contract or misrepresentation against the merchant, and it is with regret I inform that we are unable to guarantee the outcome.

I would like to inform you that CC do not deal with consequential loss.

 

If we do not receive any response from the retailer or their comments differ from your own, we are not in a position to arbitrate in such disputes.

 

In the meantime we have temporarily credited your account with £1.5k. Should our representations prove unsuccessful, we reserve the right to recharge this amount at a future date.

..."

 

I sent all the email correspondence but some of the correspondence took place by SMS also, as well as verbally. However from the correspondence the merchant accepted parts were missing that the manufacturer had sent components and not a complete package, that it had taken over a month to send the missing parts and still haven't sent all the original documentation for the appliance. There is a written without prejudice offer from the manufacturer not the supplier and acceptance of the issue 35 days after the order was originally received.

 

As I have previously stated the goods were not fit for purpose as originally sent they were incomplete and without documentation / instructions,Under the Sale of Goods Act 1979, all products must be ‘fit for purpose’, be of satisfactory quality and fit its description. This means that products must fulfil the purpose the customer has been led to expect and the reasons that led them to buy it, they weren't why isn't the CC acting on this?

The Manufacturer promised to send the missing parts by the weekend on that basis and as time was pressing for the reasons previously stated the installation was started. Thereafter the wrong parts were sent and still no documentation, without documentation it was difficult to establish which parts were missing over a month later with numerous promises and denials in between the parts were finally all sent to enable completion of the installation. Once started it we were committed to the installation as the part of the room was constructed around this unit which is very large and very heavy it is not an easy thing to remove and replace and certainly not without cost.

Six weeks without hot water with a new born child they couldn't stay in the property and had to stay elsewhere. I claimed a small portion for distress though I am not strictly entitled to such the claim I made was for costs in dealing with the issue and with failed attempts to install the appliance.

 

The only information I can find on defective product is the guide to consumer protection act 1987 for product liability"

1. A defective product is defined as one where the safety of the product
   is not such as persons generally are entitled to expect. This definition provides an objective test of defectiveness and refers neither to the particular injured person nor to the particular producer. A product will not be considered defective solely because it is of poor quality. A product will not be considered defective simply because a safer version is subsequently put on the market.
   

 

 

 

 

Without a gas isolation valve the appliance is unsafe for connection to the gas supply and therefore defective. With out the control panel the appliance is defective.

 

With regards to proving a fault SOGA states

Proving a problem

Included in the law is a section on burden of proof. This outlines whether you are entitled to ask a customer to prove that an item was faulty when they bought it from you.

 

The details of the law are explained opposite. If you are considering asking a customer to prove that an item was faulty when they bought it from you, it is important to consider what proof an impartial person in a court might feel was required. For example, someone in a court might accept that a simple customer statement saying that their item did not work correctly would be sufficient proof.

Equally the goods were accepted on the basis the correct parts would be issued, this then dragged on and on and it became unreasonable and more costly to replace the goods and un-install and reinstall a replacement appliance. Further the manufacturer did not want the original appliance which left me with a cost to dispose of this appliance.

 

SOGA again:

Faulty goods that have been accepted

If the item does not conform to contract (is faulty ) for any of the reasons outlined and the customer has accepted the goods, the law says the customer is entitled to claim a repair or replacement of the goods in the first instance.

 

If either a repair or replacement is not possible, or the cost is greater than the value of the item ( disproportionately costly ), or the customer claims either option is taking an unreasonable amount of time or is causing unreasonable inconvenience, the customer is then entitled to

 

• keep the goods and claim a price reduction from the retailer to compensate them for the fault in the goods - this would be the difference between the value of the product in perfect condition and the value of the product in the faulty condition, or
  
• return the goods and rescind the contract . This would mean that the customer returns the goods and you provide a partial refund, calculated to reflect the benefit the customer has received from the product.
  

Where a customer is entitled to repair or replacement because they have accepted the goods, they can claim price reduction or partial refund if the repair or replacement is

 

• taking an unreasonable time, or
  
• causing an unreasonable inconvenience, or
  

Given the above, what grounds do the CC have to not be upholding my claim? Edited October 28, 2013 by juliusceasor

[steampowered]

The CC seems to be saying that you have not provided any proof of your claim. What proof have you provided?

[juliusceasor]

Thanks.

 

The CC seems to be saying that you have not provided any proof of your claim. What proof have you provided?

 

I sent what they asked for a copy of the correspondence between myself and the supplier and manufacturer and the suppliers T&C's (why they couldn't download them themselves is beyond me).

 

The supplier acknowledges parts are missing following my email to them 28/8/13 and correspondence shows them requesting the matter be resolved by the manufacturer and a querying if this had been done 6/9/13. It then shows from the tech side of the manufacturer a possible reason 16/9/13 why these parts were missing, further correspondence around the 27/9/13 chasing parts.

 

As per the SOGA website I think this is ample proof of a fault and I refer again to

If you are considering asking a customer to prove that an item was faulty when they bought it from you, it is important to consider what proof an impartial person in a court might feel was required. For example, someone in a court might accept that a simple customer statement saying that their item did not work correctly would be sufficient proof.

 

I think what is required is a strongly worded letter to the CC pointing out the relevant points of consumer law that are valid, because in my view they are not applying consumer law correctly, but that's my biased opinion naturally, which is why I am asking on here for opinion on this. I do feel pursuing the CC is the most productive faster route, thought that doesn't preclude the small claims court route or FOS either.

Edited October 29, 2013 by juliusceasor

[steampowered]

Section 75 is not a separate route to small claims court. The point of section 75 is that it makes the CC company equally liable with the seller for the purposes of court proceedings. What you are really asking the CC company to do is to pay on a legal claim you have against them without the need for you to bring court proceedings. If you needed to enforce section 75 you would do it through a court claim with the seller and the CC company as joint defendants (or through the FOS).

 

The CC company's response is technically correct. In order to claim against the CC you would first need to demonstrate that you have a legal claim against the manufacturer. In this case the claim would be for breach of contract. If you haven't done so already I think you need to explain to the CC company exactly why the supplier is in breach of contract for failing to provide the parts, and also why the lack of parts means the boiler is unusuable.

[raydetinu]

not withstanding any of the above, if the supplier has offered to refund the initial cost, i.e. 1.5k then there is no valid claim. IMHO.

They have then satisfied SOGA!

[juliusceasor]

Section 75 is not a separate route to small claims court. The point of section 75 is that it makes the CC company equally liable with the seller for the purposes of court proceedings. What you are really asking the CC company to do is to pay on a legal claim you have against them without the need for you to bring court proceedings. If you needed to enforce section 75 you would do it through a court claim with the seller and the CC company as joint defendants (or through the FOS).[/Quote] Yes I understand that, the Supplier wasn't offering anything only the manufacturer had, and only after 5 weeks of not having a operable boiler. The offer of a replacement boiler would incur additional cost and expense in removing the original unit and then reinstalling the new unit and as I have mentioned removal is no easy task the unit is 300kg the cost of this and the costs incurred due to the missing parts, would still be a cost to myself.

 

The CC company's response is technically correct..If you haven't done so already I think you need to explain to the CC company exactly why the supplier is in breach of contract for failing to provide the parts, and also why the lack of parts means the boiler is unusuable.

 

I set this out in my original letter to them the boiler was unusable until a month after it was received when the final missing parts arrived.

 

What I am trying to recover are my costs due to the delays caused tot he installation. Because the supplier /manufacture hasn't entertained them then I felt it right to claim under section 75. I am perfectly willing to claim the cost of the boiler back deduct my costs and forward the remaining money to the supplier.

[raydetinu]

Was it not your choice to await the missing parts and therefore the delays?

You could of just rejected it when you realised there were parts missing and then they would have been responsible for collection.

[juliusceasor]

Was it not your choice to await the missing parts and therefore the delays?

You could of just rejected it when you realised there were parts missing and then they would have been responsible for collection.

I had a choice of no heat and hot water with a baby imminently arriving and the promise that the missing parts would be sent immediately, plus the installation was already scheduled, building work was tied up around the installation starting.

Therefore it was accepted the parts would be sent and the install could continue when they arrived, it was not expected to take 5 weeks of further aggravation, delays and communication to enable the installation to be completed.

[raydetinu]

That's the risk you take!

With the offer of a refund I don't think you will get anywhere with the consequential knock on affects.

good luck anyway.

[steampowered]

Personally I am behind you on this. If the boiler supplied does not actually work due to missing parts, then surely that is a breach of contract and I would think that foreseeable consequential losses should be recoverable (subject to what is stated about consequential loss in the T&Cs). Although the bank seem to be saying you have not convinced them there was a breach of contract at all without getting into the consequential loss point.

 

If you don't get any joy with the bank then FOS or small claims court it would have to be to get anywhere with this.

[juliusceasor]

That's the risk you take!

With the offer of a refund I don't think you will get anywhere with the consequential knock on affects.

good luck anyway.

 

Thank you.

 

I think you have missed that the offer was only made after 5 weeks, and the cost of implementing the offer was greater than the benefit, infact there was/ is no benefit as nothing can achieved by the replacement except additional cost as I have explained.

[juliusceasor]

Personally I am behind you on this. If the boiler supplied does not actually work due to missing parts, then surely that is a breach of contract and I would think that foreseeable consequential losses should be recoverable (subject to what is stated about consequential loss in the T&Cs).

Thank you, that was my thought.

Although the bank seem to be saying you have not convinced them there was a breach of contract at all without getting into the consequential loss point.

Indeed and I think that is not uncommon with the banks not taking due care and consideration, it is simpler to pass the buck either to the ombudsman or hope the client accepts what they say.

 

I will draft another letter to set out what and why I think the breaches have occurred and wait for their response. Although I find it odd that rather than waiting to discuss their opinion with myself /request further evidence they at the same time of notifying me, go to the merchants bank seeking goodwill ..

 

Thank you all for the input.