Return to main Advice page

Legal Eagle

Miscellaneous

Q: Faulty goods

Our fringe company acquired a video camera so we could record our performances for promotional use. The first time we used it, the machine failed and the manufacturer identified a fault with the camera which would require it to go back to the retailer. The retailer offered a free repair, refusing a refund or replacement, saying that this applied within 28 days of purchase. We used it straight from the packing after 30 days. Do we have any comeback in law?

A: I do not know where the reference to 28 days comes from, unless, perhaps, it was a specific term of your contract with the retailer. Certain consumer contracts for the sale of goods made away from his business premises on an unsolicited visit by the supplier (so-called 'distance contracts' and including internet purchases) carry a statutory entitlement on the part of the purchaser to a seven day period of cancellation, but that obviously does not apply to your case.

On the other hand it seems to be acknowledged that the camera was defective, in which case you can rely on a statutory condition that it would be of satisfactory quality, fit for the purpose for which it was intended and free of defects. You would have had a right to cancel the purchase and get your money back for breach of that statutory condition and for failure of consideration but in my opinion you have now lost that right because you did not exercise it within a reasonable time after the purchase, ie as soon as you had a reasonable opportunity to try out the equipment.

Since you have lost the right to cancel the purchase, you are left with a claim for damages, comprising your estimated loss directly and naturally resulting from the breach. That would include the cost of repair, but you say the retailer is offering to carry out the repair free of charge, so no loss there. As to any other loss, you have a duty in law to minimise this by getting the equipment repaired as soon as possible after discovering the defect. If you incurred any financial loss from the video camera's failure to photograph a particular performance when you believed it to be in good working order, your chances of recovering of such a loss would depend on whether it can be regarded as directly and naturally resulting from the breach, which in turn may depend on whether you made the supplier aware of your intended use of the equipment when you bought it.

It is strange that the manufacturer, having identified a fault with the camera, has referred you back to the retailer. One would expect the equipment to come with a manufacturer's guarantee. You should look for this in the packaging and if you find it you should study its terms to see whether you have a right of recourse against the manufacturer. Most retailers, particularly large department stores, would be expected to operate a goodwill policy of refund or replacement in the circumstances which you describe. If this has been refused by a sales assistant of your retailer it might be worthwhile your going over the assistant's head to someone higher up in the retailer's management chain, perhaps even the owner or managing director.

Depending on the seriousness of the fault, you could also try making a formal complaint to the Office of Fair Trading in the hope that it might persuade the retailer to offer you a refund or replacement, rather than repair. Personally, if it can be repaired satisfactorily, free of charge, and if a manufacturer's guarantee does not help, I would be inclined to accept this as offering the best solution.

You need each performer's written consent to film the performance, so make sure you get this next time, if you have not already done so.

First published 4th August 2005