Consumer Remedies
Right to Remedies
Where the goods are not in conformity with the sales contract at the relevant time, the consumer can exercise the short-term right to terminate the sales contract or has the right to have the goods brought into conformity through repair or replacement. The consumer may choose between the remedies of repair and replacement of the goods unless the chosen remedy would be impossible for the trader to carry out or would impose disproportionate costs on the trader taking account of all the circumstances. The trader may refuse to bring the goods into conformity if both repair and replacement are impossible for him to carry out or would impose disproportionate costs on him.
Short-term right to terminate sales contract
The short-term right to terminate the contract expires at the end of the period of 30 days beginning with (i) where the contract requires the trader to install the goods after delivery or take any other action to enable the consumer to use the goods, the completion of that installation or other action or (ii) when, in any other case, the relevant time.
The consumer may terminate the contract prior to that time. Where the goods may expire or deteriorate in a shorter period, the short-term right to end the contract will be the end of the shorter period. In this case, the burden of proof is on the trader in a dispute. Where the consumer has the right to terminate the contract, the consumer may do so in the manner provided and the trader must comply with the specified obligations.
Repair or Replacement of Goods
Where goods are brought into conformity by repair or replacement, the trader must ensure repair or replacement of the goods is carried out free of charge, within a reasonable time period and without any significant inconvenience to the consumer. The reasonable time period is determined objectively. The consumer must make the goods available to the trader. The trader must bear the expense of taking back the goods, including removal and reinstallation.
The consumer is not liable to pay for the normal use of the replaced goods during the period before they are replaced. The Minister may make regulations, as considered in the interest of consumer protection and fair competition, and having consulted with interested parties, regarding a reasonable time period for the repair or replacement of a specific category of goods.
Proportionate Reduction in price and Termination of Sales Contract
Where a consumer has exercised his right to remedies and the trader has refused to bring the goods into conformity with the sales contract or the trader has not completed the repair or replacement of the goods; the same or different lack of conformity becomes apparent despite the trader’s attempts to bring them into conformity; the lack of conformity is of such a serious nature to justify an immediate price reduction or the termination of the sales contract; or the trader has declared or it is clear from the circumstances that he will not bring the goods into conformity within a reasonable time or convenient to the consumer.
The consumer will has the right to a proportionate reduction in the price or the right to exercise the final right to terminate the contract. If the lack of conformity is only minor, there is no final right to terminate the contract. In this instance, the burden of proof is on the trader. It is objectively determined as to the rights available to the consumer or if the consumer will be required to accept further attempts by the trader to bring the goods into conformity.
Where applicable, it is objectively determined if the lack of conformity is of such a serious nature to result in a proportionate price reduction or final right to terminate the contract. Where the consumer has the final right to terminate the contract due to some of the goods not being in conformity with the sales contract, the consumer may only do so in relation to those goods and any other goods acquired with them where it would not be reasonable to keep the conforming goods.
Price Reduction
Where the consumer has the right to a proportionate price reduction, he may require the trader to reduce the price required under the contract or receive a reimbursement from the trader more than the amount of the reduction. The reduction in the price must be proportionate to the decrease in value of the goods received compared to their value if they were in conformity with the contract.
Where the consumer transfers ownership of goods to the trader in full or part payment of the price, the right of the consumer to a proportionate price reduction will not apply if no agreed monetary value as ascribed by the parties or the goods cannot be divided up to enable the trader to receive/retain only the reduced price.
Obligations of consumer in event of termination
Where certain rights apply, the consumer may terminate the contract by means of a statement to do so to the trader and return the goods delivered to the trader at the trader’s expense. Otherwise, the consumer is liable in damages for any loss or damage suffered by the trader as a result of the failure.
Remedies where contract also provides for supply of digital content etc.
Where goods are sold to a consumer under a contract that provides also for the supply of digital content, a digital service or a service, the consumer can terminate the contract or obtain a price reduction of the contract where they would be entitled to terminate it if it were a sales contract for sale of goods only and the value of the content or service would be reduced in the absence of the goods.
The latter is e determined taking all the circumstances into account. The entitlement to terminate a contract will not apply for terminal equipment and a bundle of services under the European Electronics Communications Code (Recast).
Obligations of trader where sales contract terminated
The following applies where the consumer exercises the right to terminate a sales contract the short-term right to terminate or the final right to terminate.
The trader, on receipt of the goods or evidence that they have been returned, must reimburse the consumer the price paid for the goods and any costs incurred by the consumer in returning the goods. Where the consumer exercises the final right to terminate the contract, the price reimbursed may be proportionately reduced for any depreciation in value of the goods, in excess of the depreciation expected to result from their normal use. In this case, the burden of proof is on the trader in a dispute.
Where a conditional sales contract is terminated by a consumer before the entire price is paid, the reimbursement is equal to the amount paid. Where ownership of the goods is transferred as full or part payment of the price, the trader must return those goods and may reimburse any price paid. Where it is not possible to return the goods, the trader is to reimburse the consumer with the agreed monetary value of the goods when the contract was concluded or where no monetary value was agreed, a reasonable sum and justified exchange value of the goods at the time of conclusion of the contract.
Time limits and means of reimbursement by trader
In instances where reimbursement is owed to the consumer, the trader must do so no later than 14 days after the date on which the goods were returned or evidence received that they were returned and make payment in the same way as the consumer used to pay for the goods unless otherwise agreed to by the consumer, without any fees being incurred. If the trader fails to comply with the obligation to reimburse the consumer, he is liable in damages for any loss or damage suffered by the consumer as a result of the failure.
General right of consumer to withhold payment
Where the trader fails to comply with the obligations to deliver goods in conformity with the sales contract at the relevant time, the consumer has the right to withhold payment of any outstanding part of the price until the trader fulfils his obligations.
The price withheld will be proportionate to the decrease in value of the goods received compared to their value if they were in conformity with the contract. The consumer’s decision to withhold payment is expressed in a statement to the trader until he has fulfilled his obligations to deliver goods in conformity with the contract.
Effect of termination on ancillary contracts
All ancillary contracts are terminated along with the termination of the sales contract without any cost to the consumer. The trader must inform any other trader with whom the consumer has an ancillary contract of its termination.
Obligations apply to both trader and consumer where an ancillary contract is terminated. Any security provided under a terminated ancillary contract is treated as having no effect and any property lodged in this regard must be returned immediately by the trader or third party. “Ancillary services” are defined.
Consumer’s right to pursue other remedies
The remedies provided are without prejudice to the right of the consumer to pursue other remedies provided that the same loss is not being recovered twice. Several remedies are available to the consumer, such as, claiming damages; relying on lack of conformity with the sales contract; seeking to recover money paid for goods that do not comply with this Part; having a lack of conformity remedied elsewhere and recovering the costs incurred from the trader or an order for specific performance under section 52 of the Sale of Goods Act 1893.