Consumer remedies under consumer law
by Matthew Elvin
In recent articles I have written about the consumer guarantees that suppliers of goods and services must provide consumers, as well as the remedies available when a guarantee is breached. In this article I discuss the circumstance where a supplier has breached a guarantee, but the consumer is nevertheless restricted from obtaining the usual remedy, or is unable to obtain a remedy at all.
In most cases, where a supplier of goods or services breaches a consumer guarantee, the consumer is entitled to a remedy. However, there are two ‘exceptions’ to this rule. Firstly, a consumer will not be entitled to a remedy if the reason that the supplier failed to meet the guarantee was because of something that another party said or did. Obviously, the ‘other’ party cannot be one of the supplier’s agents or employees. Secondly, a consumer will not be entitled to a remedy if the reason for the supplier’s breach of guarantee was beyond human control. The most common example of this is weather. If the only reason for the delay is the weather, then a consumer will not be entitled to a remedy. These two ‘exceptions’ do not apply, however, if the supplier failed to meet the guarantee of “due care and skillâ€.
There are also circumstances in which a consumer’s remedy is restricted, and the remedy of ‘refund’ is not available. Ordinarily, where a supplier’s breach of guarantee is a ‘major’ breach, a consumer may receive a refund. However, to be entitled to a refund for goods, a consumer must advise the supplier that they intend to ‘reject’ the goods and then return the rejected goods (or ask the supplier to collect them). Only after this has been done can a consumer receive a refund. Accordingly, if it is not possible to return the goods, no refund can be obtained (although other remedies will be available). Therefore, if a consumer throws out the goods, the goods are destroyed, or the goods are lost (through no fault of the supplier), then they cannot be returned. Similarly, if the goods have been attached to other property and will be damaged if they are removed, then they cannot be returned. For instance, wall paper which is already on the wall will clearly be damaged if it is removed. In these instances, a consumer cannot be refunded.
Finally, a consumer cannot reject goods and receive a refund for them if too much time has passed. The period of time in which a refund can be sought runs from the date that the goods were supplied to the consumer, until the date that the fault or problem would reasonably be expected to have occurred anyway. This will be determined on a case by case basis.
If you have any questions about remedies, refunds or generally about consumer guarantees, do not hesitate to contact Theobald Lawyers for the answers.
Contact us to arrange a chat with one of our legal professionals. It doesn’t hurt to ask.
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