Alex Heney S.O.G.A. 'acceptance' theory anyone????

The problem with such a "theory" that once you accept goods you cannot get a refund is of course such issues as: fitness for purpose, merchantable quality etc. These terms are implied (or expressed as the case may be) in contracts thereby entitling a party to claim breach and obtain a refund as one of the remedies.

In relation to the hammer example, section 13 of the SoGA does state that where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description. Alex will probably argue that frozen hammer does comply as it corresponds to that description, however it fails to the test laid out in s14 of the SoGA.

The SoGA nor the history of contract law support the argument put forward by Alex as stated by Jethro.

Can we just look a little at the Act itself. S11(4) reads

(4) [Subject to section 35A below] where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is an express or implied term of the contract to that effect.

Section 35 reads

35 Acceptance

(1) The buyer is deemed to have accepted the goods [subject to subsection (2) below-

(a) when he intimates to the seller that he has accepted them, or

(b) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.

(2) Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose-

(a) of ascertaining whether they are in conformity with the contract, and

(b) in the case of a contract for sale by sample, of comparing the bulk with the sample.

(3) Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.

(4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.

(5) The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.

(6) The buyer is not by virtue of this section deemed to have accepted the goods merely because-

(a) he asks for, or agrees to, their repair by or under an arrangement with the seller, or

(b) the goods are delivered to another under a sub-sale or other disposition.

(7) Where the contract is for the sale of goods making one or more commercial units, a buyer accepting any goods included in a unit is deemed to have accepted all the goods making the unit; and in this subsection "commercial unit" means a unit division of which would materially impair the value of the goods or the character of the unit.

(8)] Paragraph 10 of Schedule 1 below applies in relation to a contract made before 22nd April 1967 or (in the application of this Act to Northern Ireland) 28th July 1967.

[s35A Right of partial rejection]

[(1) If the buyer-

(a) has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but

(b) accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods,

he does not by accepting them lose his right to reject the rest.

(2) In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.

(3) For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.

(4) This section applies unless a contrary intention appears in, or is to be implied from, the contract.]

So, acceptance DOES bring to an end the right to reject for breach of condition. If there is no rejection, there can be no refund.

Acceptance does NOT bring to an end the right to claim damages for loss caused by the breach of condition.

S35 helps us to understand what is meant by 'acceptance' and s35A, as was mentioned earlier in this thread, deals witht he particular case where part of the goods are in conformity and part are not.

The frozen kipper example is interesting but in the end probably does not help anyone much. It seems tome that s35(2)(a) applies - once the buyer sees the frozen kipper he has had a reasonable opportunity to see that the item is not a hammer and is not really suitable for any of the common purposes of a hammer (so is not of satisfactory quality under s14, regardless of whether it is a 'hammer' at all for the purposes of s13).

So if he goes ahead and uses it as a hammer, I think thathe has 'accepted' it under s35 and hisremedy is for damages only i.e. he has lost his right to a refund.

But this example is so extreme that it may not really be so very illuminating.

It will no doubt be said against this argument - as in the post to which I am replying that

'These terms are implied (or expressed as the case may be) in contracts thereby entitling a party to claim breach and obtain a refund as one of the remedies'

But the problem with that is that s11(4) clearly says that in the case of acceptance a breach of CONDITION no longer gives the right to reject the goods. And ss13,14,15 all say that the terms they imply are conditions. It is of course the general rule that breach of condition gives rise to the right to reject, but if that right under ss13-15 survived acceptance, then s11(4) would be meaningless.

I hope that replies to the above will deal in detail with the terms of the Act, rather than trying to rely on perceptions of 'common sense' - often a dangerous tool when interpreting Acts of Parliament.

Andrew McGee

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messagenews: snipped-for-privacy@k79g2000hse.googlegroups.com... \

s11(4) only applies on the precondition that the contract is not severable. Assuming that the triggers of s11(4) are satisfied, a breach of warranty can still give rise to damages which would cover the contract price as the measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

Furthermore, the act of "acceptance" is not completed until one has had an opportunity to examine the goods to ascertain their conformity with the contract- so s11(4) cannot apply to those instances where acceptance has not occurred due to a breach of an implied condition only coming to light after possession as distinct from acceptance.

You are correct in pasting s11(4) however the totality of the act has other sections which would apply to instances such as those discussed here. Be it unintended, the act has taken a common sense approach.

Are you misunderstanding the point of acceptance?

It doesn't occur simply by you taking the box away from the shop, but after a few days when you are deemed to have had time to examine the goods and make sure that they really are fit for purpose.

The period that you have for examination is defined (more or less) as 'a reasomable time' and If you chose not to open the box in this time period you cannot get it extended because you couldn't be bothered to check at the earliest opportunity.

tim

Wow and all this on UK. Legal.

sounds a bit fishy to me

I would doubt that even Alex Heney would claim that the frozen kipper was "reasonably durable".

It isn't insane - the law is rather complex (okay, I am not sure I understand it!) but it is a correct statement of principle to say that once the buyer has accepted the goods he must put up with a repair rather than a replacement/full refund.

However the law is not at all clear on what amounts to acceptance, and there have been several cases which indicate that you must have an opportunity to see if the goods perform as intended. There is no hard and fast period of time and each case must be judged on its own merits.

JethroUK wrote: || || He says that i am not entitled to a full refund because I should not || have 'accepted' it as a hammer - which is crap and in fact i was || clearly misled into beleiving it was a hammer and would get a full || refund (depite demolishing the kipper) under trades || description/misrepresentation

There may be misrepresentation. Did he claim to be a sole trader?

I think my own dispute with an electrical retailer might be more to the point.

You buy a freezer. You fill it with food and begin using it. After enough frost has built up and the auto-defrost function begins to work, there is a leak of water onto the floor. I think it could be argued that you aren't deemed to accept delivery until you have put the thing properly through its paces. To complicate matters, though, in my case the fault is repaired and it then becomes apparent that there is another fault which makes the freezer too warm and therefore totally unfit for purpose, requiring the replacement of several major parts. It was at that point that I wrote to the retailer rejecting the goods. I'd quite like to let a judge decide whether or not I had lost the right to reject the goods by then.

I agree that there is a question about what the measure of damages might be. But I do suggest that it is absolutely clear that in a non-severable contract acceptance eliminates the right to rejct.

I agree that possession is different from acceptance - never suggested otherwise; but again, where there is acceptance, the right to reject is lost.

REFERENCES please??? Which sections??

Andrew McGee

I suspect that case law interpretation of "non-acceptance" in accordance with the new sections in the SOGA would now be considerably widened

That's a better example. But surely the answer to your specific point about repair is in s35(6):

(6) The buyer is not by virtue of this section deemed to have accepted the goods merely because-

(a) he asks for, or agrees to, their repair by or under an arrangement with the seller, or

Of course that does not say that repair NECESSARILY preserves the right to reject. I think my question would be, why was it only later that this defect rendering the goods unsatisfactory came to light? To me that is a way of testing whether, in the particular context, you have had a reasonable opportunity to examine.

I think that the questions about what is 'reasonable opportunity' are far more interesting and difficult than th epoint which started this thread. S11(4) surely shows that Alex was right in his original statement of the law (I know Todal wasn't disputing that)..

Andrew McGee>

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Though didn't a judge agree with a buyer that he could reject a lawnmower even though he bought it a few months before, during winter snows, because it only became apparent it was faulty after he used it for the first time in the spring?

That isn't quite what he said, but as far as the specific right of rejection is concerned he is correct.

What you don't seem to appreciate is that rejection (as defined in the SOGA) is a very specific and very limited option related solely to your right to inspect the goods upon receipt. It has no relevance to durability or anything else other than inspecting the goods to ensure they are in conformity with the contract. This section is about 100 years old and has its roots in commercial not consumer law.

Rejection allows only one outcome which is that the contract is cancelled. Historically courts in consumer cases have generally taken the window of opportunity for inspection to be a matter of days or at most a few weeks. Once you have accepted the goods by one of the several ways defined in the SOGA your right to reject them is irrevocably lost.

That does not mean you have no recourse against the seller if the goods fail. Your claim now though is for breach of warranty. The major difference is that whereas the only option for rejection is cancellation of the contract the options for breach of warranty under S53 (or the new SOGA consumer rights under Part 5A) are flexible and include repair, replacement, full and partial refund.

Under a breach of warranty (S35) you are specifically denied the right to reject the goods but are entitled to "set up against the seller the breach of warranty in diminution or extinction of the price"

So you may get repair or replacement, a full refund, or a partial refund or compensation if you keep the goods but can show their value has been diminished.

Note though that the supplier is not required to offer a refund just because you want one and is entitled to offer to repair or replace the goods instead. If you refuse to allow either without good cause your amount of compensation will usually be limited to the cost of the repair, not the price you paid for the goods.

If repair is not practical and the seller offers a refund it can be reduced to take into account use you have had from the item. If you bought goods with an expected working life of 2 years and they failed after six months you would be entitled to 75% of your purchase price back but not to a full refund.

You can alternatively:-

"(b) maintain an action against the seller for damages for the breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting,in the ordinary course of events, from the breach of warranty..."

In this case you might be able to claim more than the purchase price back.

"4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage."

Note however that contracts of sale are allowed to (and most do) exclude liability for consequential loss. If you new freezer failed after two months use you probably wouldn't be able to reject it nor claim for the loss of the food. If however the seller required you to return it to them you could claim for the cost of returning it.

The "new" rights under Part 5A are essentially similar except that they codify the repair/replace option in more detail (and are not anywhere near as well written as the old parts of the Act).

If you don't know any better you should have asked for something with which to knock nails in. If you ask for a hammer the law assumes you know what you have asked for and will not protect you from your own stupidity. If you go into shop, pick up a kipper and say "wow, that's a nice hammer" the problem is entirely yours. If the seller says "here is a hammer" and hands you a kipper then you can immediately reject the goods as not being in conformity with the contract. If you can't tell the difference between a hammer and a kipper - it's your problem. You can't subsequently reject the kipper as being of inadequate quality as a hammer

"14(2C) The term implied by subsection (2) above does not extend to any matter making the quality of goods unsatisfactory- (b) where the buyer examines the goods before the contract is made, which that examination ought to reveal,"

To take a slightly more realistic example. You go to a shop and ask for some 2lb club hammers. The retailer sells you two and you go home and use them to prop up your car while you are working on it. One breaks. You are entitled to no recompense or replacement as propping cars up is not something a hammer is usually expected to do.

You go to a shop and ask for some 2lb club hammers and say you want them for propping your car up with and ask the retailer to confirm they will be OK for this, he agrees they will. He sells you two and you go home and use them to prop up your car. One breaks. You are entitled to reject it and get your money back as you told the seller your intended use, he accepted it and that becomes a condition of the contract.

You have a building job to do and buy two hammers of appropriate size type and quality for the task. You take them home and the first nail you try one on the hammer breaks. You can reject that hammer and get your money back, you do not have to accept a replacement.

You use the other for several weeks. You have now accepted it. However after a month it breaks. You cannot now reject it as rejection is a very specific right which was irrevocably lost when you accepted the hammer by using it.

However, you can still take it back to the retailer and claim for breach of warranty. Now though you don't have a right to demand a refund. The breach of warranty can be corrected by replacing or repairing the item.

The retailer can chose to replace the hammer with another of the same specification (we can assume repair isn't an option). If he has none in stock he can offer a refund which in this case would be for the full cost as a hammer has a working life of decades and you had had it for an insignificant fraction of that time. It is the retailer, though, not the buyer, who chooses whether to replace or refund.

"Peter Parry" wrote in message news: snipped-for-privacy@4ax.com...

Not necessarily. Sometimes quite a few months.

Laurelgates v Lombard North Central Plc In October 1979 P bought a car on a three-year hire-purchase contract from D. By January 1980 a number of serious defects in the car had come to light. By the end of March 1980 there were 12 further faults, and the original defects had not been rectified. Further defects arose. In June 1980 P wrote to D rejecting the car and seeking the return of his money. In September

1980, P demanded the return of his money or a new car. Eventually P claimed damages from D for breach of the implied condition of merchantable quality within the Supply of Goods (Implied Terms) Act 1973 s.10(2). Held, giving judgment for P, that (1) the car was not of merchantable quality when, in August 1980, P rejected it; (2) P had unequivocally rejected the car and not affirmed the contract; (3) the rejection was sufficiently prompt (China National Foreign Trade Transportation Corp v Evlogia Shipping Co SA of Panama (The Mihalios Xilas) [1979] 1 W.L.R. 1018, [1979] 2 All E.R. 1044, [1979] C.L.Y. 2444 applied). Court: (QBD) Queen's Bench Division Judge: Webster, J. Judgment date: January 1, 1983

Yeoman Credit v Apps It is an implied condition of a contract of hire (and so also of a contract of hire-purchase) that the goods hired are reasonably fit for the purpose for which they are hired, except where the defect is patent and the hirer did not rely on the owners' skill or judgment. The owner cannot escape from a fundamental breach of that condition by an exception clause excluding all conditions, whether that breach consists in one major defect or an accumulation of minor defects. A hire-purchase agreement negotiated by a dealer, D, between a finance company, F, and the hirer, H, provided that H should take on hire from F a second-hand car, paying GBP 125 deposit and 30 monthly hire charges of GBP 14 19s. 1d. and finally having an option to purchase the car for GBP 1. F never saw the car, which had certain apparent minor defects, which D agreed to put right. The agreement provided that "No warranty whatsoever is given by [F] as to the age, state or quality of the goods or as to fitness for any purpose and any implied warranties and conditions are also hereby expressly excluded." The car had so many minor defects that it could not be used on the roads and after about three months from delivery H rejected the car. F sued H for arrears of instalments and damages and H counterclaimed for the deposit and instalments paid by him as money paid on a consideration which had failed. Held, H was entitled to reject the car because F was in fundamental breach of the implied condition of fitness and the exception clause did not protect F; accordingly, F was not entitled to instalments or damages for any time after rejection, but the consideration had not totally failed, so that H was not entitled to recover what he had paid and must pay the instalments down to rejection. Court: (CA) Court of Appeal Judgment date: March 16, 1961

But a repair should be perfectly easy, unless the kipper has a fibreglass shaft.

It is clearly faulty (unfit for purpose) whether by materials or workmanship and you get a full refund

There is no concern of 'acceptance' or 'putting it through it's paces' - your life is not long enough to put say a computer 'through it's paces' - really!

It must be me that's insane

There is no 'acceptance' - period! well maybe with regard to used items ('sold as seen')

A/ I had the frozen kipper for 3 days - used it - abused it - destroyed it - 'accepted' it - are you also suggesting it would be none refundable? - it is of course fully refundable under trades description

B/ Your life is not long enough to 'examine'/test/accept all a computer (or car) claims to do