Consumer protection
Consumer protection (sales of goods)
According to the trade practices regulation 1974, an individual is a ‘consumer’ if the cost of the products or services bought is not more than $40000 or the products or services are of an item ordinarily bought for personal, domestic or household usage, or the products consist of a financial road vehicle. Particular exceptions may apply if the products are bought for the aim of re-supply or using up or remaking.
The notion of customer could be named a ‘basic concept’ in fair commerce legislation, as it defines which parties are entitled to profit from particular customer protection provisions. The issue of adequately determining a ‘customer’ has been a main difficulty in planning customer protection legislation. Although this is one field where uniformity should reasonably apply, in practice this is not the issue. Even if a greater level of uniformity is acquired in the substantive provisions of fair commerce legislation, the sphere and application of the supplying will always differ between laws so long as basic concepts are not essentially determined.
The notions of customer found in State and Territory fair commerce legislation differ greatly. Some are relied on the cost or nature of the products or services bought, others are relied on the person acquiring the products or services or the objective for which the products or services are bought. Some samples of discrepancies contain:
1) In Queensland only a “person” can be considered a customer in instances where the cost of the products or services is more than $40000. Other laws employ a broader notion based on “individuals”, which can contain partnerships, businesses and companies;
2) New South Wales and Western Australia bring farming jobs special protection by considering some operations as customer operations, although they would be excepted from the notion in other laws;
3) Some laws have particular regulations for financial road vehicles, intentionally including them in the notion of customer despite the notion that their cost exceeds the prescribed quantity and they are not ordinarily bought for personal, domestic or household usage.
Thus, customer denotes any natural person who, in the agreements introduced in these jurisdictions, is acting for aims which are outside his sale, business or profession;
Customer insurance defines any undertaking to a buyer by an individual acting during his business, presented without supplementary charge, to pay back the value paid or to replace, overhaul or handle buyer product in any method if they do not meet the demands set out in the guarantee parts or in the pertinent advertising.
Sale of goods agreement is an agreement of sale according to which you instantly become the possessor of the product you bought the product has to be already available or has to be in property of the seller. Agreement to sell belongs to coming products or products that have not yet been made particular.
Expressed conditions of the agreement, are oral or written conditions agreed between the sides. Usually expressed conditions are a salesman’s norm terms and conditions, which are included into agreements for the sale of products. In customer sales, should a firm wish to base on their normal terms and conditions, they should provide that these are taken to the consumer’s consideration, agreed (particularly if they are onerous to the consumer) and are judicious.
Display of the goods.
Any numbers or statements in the agreement or in any other document provided by a firm as to the display or capacity of the products are upon the responsibility that they will be applied in terms suitable for their own and effective usage and are only approximate.
If in the agreement the firm expressly guarantees the precision of such numbers or statements then, in the event of the products after commissioning not managing to achieve them, the firm shall be entitled to a favourable term of time and to adequate possibilities to promote it to bring the products up to the guaranteed numbers or statements and the contractual date for delivery of the products shall be extended for such favourable term. If by the agreement the firm undertakes only that the products will subject to such numbers or statements, comply with such margin or tolerance then, in the event of the products after commissioning not amanaging to achieve and correspond with such undertaking the firm shall be entitled to a favourable term and favourable possibilities to bring the products up to such numbers or statements comply with such margin or tolerance, and the contractual date for delivery of the products shall be extended for such acceptable term.
Subject to the conditions above, all numbers or statements as to carrying out or capacity inserted in the agreement or in any other paper supplied by the firm before or after the agreement shall be approximate only.
The description and examples inserted in the firm’s catalogues, cost lists and other advertising things are intended merely to display a fundamental idea of the products depicted here and none of them shall form part of the agreement.
Acts and regulations of sales goods
When you purchase goods from a salesman, such as a shop, market-place, garage, and so on, you enter into an agreement that is regulated by the Sale of goods law 1979 (changed by the Sale and supply of products law, 1994 and the Sale and supply of products to customer’s laws, 2002). The law gives you particular implied, or self-regulating, statutory rights, under the agreement.
Agreement is a legally binding document between two sides, involving the replace of something of worth, for instance, money for products. Lots of agreements are oral, and only a few should be in writing - for instance, land affairs and credit. Oral agreements are just as binding as written ones, but difficult to prove.
As well as the indicated rights laid down in the Sale of products law 1979 (as changed), covered above, you can also have rapid rights in an agreement. These are where you negotiate particular conditions important to your agreement, for example, a special delivery date, or exceptional specifications for the products.
Statutory rights of a customer.
The Sale of Goods Act 1979 (as added) says that products should be:
a) of an acceptable condition, for instance, of a standard that an intelligent person would regard to be acceptable - usually free from fault or damage, as well as being fit for their ordinary purpose, of a favourable appearance and complete, safe and lasting;
b) Correspond to the aim - as well as being fit for the aim for which they are usually sold, products should also correspond to any exact or particular aim made known at the date of the agreement;
c) As explained - products should conform with any presentation applied to them. This could be orally, words or images on an item, packaging or an advertisement.
The Unfair agreement conditions regulations, 1977 and the Unfair conditions in customer agreement regulations 1999:
Amongst them, these regulations allow you to question any contractual condition that may be unfair or illogical, unfairly considered against you, or is doubtful. Standard agreement terms should be expressed in distinct understandable words. It is illegal to have an agreement term that tries to limit your statutory rights, or evades any responsibility for death or personal damage. In particular cases, the Office of fair commerce (a Central State Department) or your local commerce Standards Department may be able to make a firm avoid from using an unfair condition in the coming, even though they will not help to settle an individual's issues.
Incorrect presentation
If you have been told something exact about products that made you choose to purchase them, but which proves to be fault, they have been incorrectly introduced to you. In most occasions, you can complete the affair and have your cash back. This can be an elaborate area of law, involving various sorts of incorrect presentation, as well as differing legal remedies. Also, the liability for proving an affair (for instance, the 'burden of proof') alterations, resting on the sort of incorrect presentation. If you are uncertain, get some advice.
Commerce descriptions regulation, 1968:
Sometimes, if a seller makes a misrepresentation about products, a criminal violation might be committed under this regulation.
Misleading costs - customer protection regulation, 1987:
The law does not regulate the quantity a seller charges for products, but you are powered to expect the cost of product to be exactly displayed in a shop, list, or advertisement. If products are faulty priced, you cannot make the seller to give them to you, but you should announce the issue to your local Commerce standards department for inspection.
If you are sold incorrect products, the first point to do is to act immediately. Tell the seller about any difficulties, either by coming back to the shop, by contacting or writing. You should stop using the products. Technically, it is the seller’s liability to arrange to take away faulty products that you have refused from, principally if the things are large. Nevertheless, with smaller, handy goods, it may be easier to take them back to the seller yourself.
The regulation declares that you must be given an 'acceptable' length of time to check the products and examine they are acceptable. If they are not, and you are rapid, you should be powered to refuse from them and have a full reimburse.
What is an acceptable period relies on personal conditions. You would most likely have less time to examine a mixer than a car, but it might be short, and current case law recommends that it might be as little as several days or so.
If you have not abandoned it for too long, but decide to permit the seller to repair the products, you will not have lost any powers to have your cash back later if the overhaul is ineffective. If you permit the seller to replace defective products, get an agreement in written form, that if the replacements are incorrect too, you will still be able to have your cash back.
If the defect was present when you purchased the products, you do have other alternatives, even if you tell the seller too late to get a full reimburse. You can ask for an overhaul or replacement, or a discount in the cost to permit for the fault, or you can give the products back and require your cash back - this is known as 'cancel'. You may not get the full sum back, because the seller may be able to discount it to permit for the usage you have had of the products. If you require an overhaul or replacement but these are not available, or if you ask for an overhaul and it takes longer than is essentially or significantly bothers you (for example, if the defect is on a wedding dress and the repair cannot be done quite soon for the wedding), you can still require a reduction or cancel.
You should remark that if the defect happens up to six months of you purchasing the products, the seller has to conform that they were not defective when you purchased them. After that, you have to justify it.
Private Sales
When you purchase products from a private seller, you do not have the same powers as when purchasing from a trader. The legal concept of caveat emptor, or "customer’s bewaring", works. You have no powers to expect products to be of an acceptable quality or correspond to their aim, so you should check products thoroughly before you purchase them. However, the regulations do say that even private individuals should not misrepresent products to you. So, if something has been described incorrectly, you might have a claim.
Many cases have been brought under customer protection laws, such as the following:
1) A person brought a suit against a department store that ran out of an announced waffle iron and did not give him a rain control - a breach of the customer protection law in this case.
2) A homeowner brought a suit against a roofing contractor who incorrectly announced that it could arrange funding for roof overhaul jobs.
3) A woman brought a suit against a health spa that reneged on its assurance to give back her deposit and cancel her agreement if she changed her mind up to three days.
4) Health spas, accidentally, have been singled out for particular law.
Most customer protection regulations include a wide prohibition on "unfair or ambiguous practices." Besides, many statutes list particular practices that are forbidden, such as ambiguous advertising and costing.
According to the first point of the issue, on 1st August 2004 Mary Fish went to Blackmans Ltd and bought 100 beaufort plain white china plates. Blackmans Ltd agreed to have the plate engraved with a fish, which Mary Fish had chosen to use as her monogram. The total cost of the plates was ?1000.
Secondly, Mary Fish also bought 50 sets of Sharford cutlery. Blackmans Ltd had none in stock but agreed to order them from her. The cost was ?500.
Thirdly, Blackmans Ltd had 200 Charleston crystal glasses in stock and Mary Fish bought 100 of them.
Mary Fish paid Blackmans Ltd for all the goods and agreed to collect the glasses when the plates and the cutlery were also ready for collections.
On 19th August, 2004 Mary phoned Blackmans Ltd to find out if the goods were ready for collection. She was informed that the company had been put into administrative receivership and that she would be receiving a letter from the receivers in due course.
Mary Fish’s legal position in relation to the ownership of the goods purchased by her from Blackmans Ltd is the following:
According to the section 35A of the Sale and Supply of Goods Act 1994 where it is noted that “If the consumer has the right to refuse from the goods on the ground of a breach on the side of the vendor that influences some or all of them, but admits some of the products, including, where there are any products not influenced by the breach, all such products, he does not by admitting them lose his right to refuse from the rest”*, having received the message about bankruptcy of Blackmans Ltd Mary Fish can collect her goods in the form of 100 beaufort plain white china plates and 100 Charleston crystal glasses which she paid for in full size on the 1st August, 2004, and to write a claim to the liquidation committee concerning returning her ?500 for uncollected sets of Sharford cutlery.
Also Mary can refuse from the agreement in connection with the circumstances mentioned above, having required to reimburse her the damage in full size by filling of a claim to the indicated committee.
According to the next point of the issue on 5th August, 2004 Mary Fish went to Cheesemans Ltd, another trade supplier and bought a new freezer for ?1200. It was delivered to her house on 14th August, 2004.
Mary Fish received a letter on 16th August, 2004 regarding the freezer, in which she was informed by Cheesemans Ltd that a discontinued model of the freezer was sold to her in error as it had already been bought by another purchaser and they could not therefore order another. So,
* The Sale and Supply of Goods Act 1994, section 35A.
Cheesemans Ltd wanted to come for collecting it and supply her with another model for the equivalent value. They would also pay her ?100 as compensation for the inconvenience caused to her.
Mary Fish’s legal position in relation to the ownership of the freezer purchased by her from Cheesemans Ltd is the following:
Mary Fish, according to the Part 5A of the Sale of Goods Act 1979, “Additional rights of buyer in consumer cases” in Statutory Instrument 2002 No. 3045 that “the consumer has the right under and in conformity with section 48B, to demand from the salesman to repair or replace the products, or under and in conformity with section 48C to demand from the seller to bring down the purchase price of the products to the consumer by an appropriate amount, or to cancel the contract with regard to the products in question. For the aims of subsection above products which do not comply with the contract of sale at any time in the course of six months starting with the time on which the products were delivered to the consumer must be taken not to have so complied at that time”*, has the right to demand from Cheesemans Ltd to replace the freezer of appropriate quality and to demand a compensation for the inconvenience caused to her.
The letter written on 16th August, 2004, from Cheesemans Ltd informed Mary Fish about the delivery of a discontinued model of the freezer, that is, on condition of its breakage in the hereafter it will not be a subject to the repair.
Thus, Mary Fish can abolish the agreement with Cheesemans Ltd regarding the purchased freezer, or she can request from Cheesemans Ltd to replace the freezer of the appropriate quality. Besides, according to the section 48C of the Sale of Goods Act 1979 Mary Fish can demand from Cheesemans Ltd to reduce the cost of the freezer to ?100. It corresponds to the requests of the Part 5A of the Sale of Goods Act 1979, “Additional rights of buyer in consumer cases” in Statutory Instrument 2002 No. 3045, and conforms to the letter from Cheesemans Ltd.
Concerning the third point of the question on 7th August, 2004, Mary Fish went to Dodge Cars Ltd and bought a second hand Fonda estate car for ?8000.
* The Sale of Goods Act 1979, “Additional rights of buyer in consumer cases” in Statutory Instrument 2002 No. 3045, Part 5A, section 48B and 48C.
Mary received a letter on 18th August, 2004 regarding the car, in which she was informed by Greedy finance plc. that Dodge Cars Ltd had bought it from James Kent, who was the hirer under a hire purchase agreement with Greedy finance plc. Mr. Kent had defaulted in his payments to them and they wished to repossess the car.
Mary Fish’s legal position in relation to the ownership of the car purchased by her from Dodge Cars Ltd is the following:
The Invalid Terms in Buyer Contracts Regulations 1999 (SI 1999 No 2083) ensure that a term which has not been individually settled in a buyer contract is invalid (and therefore non-binding on the buyer) if, in spite of the requirement of good faith, it arouses a significant unbalance in the rights and obligations of the sides in prejudice of the buyer.
Under the Regulations, the Office of Fair Trading (OFT) has a pledge to study any complaint made to it about the justice of any contract term considered for general use. OFT may searches for assurances and, if obligatory, injunctions against those using conditions which it considers being invalid. Certain other groups are also empowered to search for injunctions against invalid conditions.
Home authority commerce standards officers also look for compliance of relevant criminal legislation such as the Commerce Descriptions Act 1968, which relates amongst other things to clocking, and transport safety legislation.
In compliance with the conditions of the present issue James Kent is not the possessor of the second hand Fonda estate car, and it denotes that he has sold it to Mary Fish illegally. The property right for the car has not passed to Mary Fish, hence she must return second hand Fonda estate car to its owner - Greedy finance plc.
In this case Mary Fish has to recover loss amounting to ?8000 from the seller - Mr. Kent, having filled the claim to a court.
References:
1. “Company Lawcards”, Cavendish Publishing, Fourth edition, Mar 2004, 176 p.
2. Julie-Anne Tarr “Disclosure And Concealment In Consumer Insurance Contracts”, Cavendish Publishing, Jul 2002, 400 p.
Keith Richards “420 Legal Problems Solved ("Which?" Consumer Guides), 2000, 320 p.
3. M.J. Chapman “Commercial and Consumer Arbitration: Statutes and Rules”, Blackstone Press, December 1997, 802 p.
4. Peter Walker “Practice Notes on Consumer Law”, Cavendish Publishing, Fourth edition, Mar 2001, 108 p.
5. The Sale and Supply of Goods Act 1994, section 35A.
6. The Sale of Goods Act 1979, “Additional rights of buyer in consumer cases” in Statutory Instrument 2002 No. 3045, Part 5A, section 48B and 48C.
7. The Timeshare Act 1992 (Commencement) Order 1992: Consumer Protection (Statutory Instruments), The Stationery Office Books, 1992, 2 pages.
8. Zahd Yaqub , Zahd Yaqub , Zahd Yaqub , Lord Alan Campbell of Alloway , Lord Alan Campbell of Alloway , Lord Alan Campbell of Alloway “European Handbook On Advertising Law”, Cavendish Publishing, Jun 1999, 986 p.