What force has a guarantee?

[Brian Kirby]

On a number of occasions, I have stated that guarantees and warranties given by manufacturers with new purchases merely constitute promises that fall outside the terms of your contract with the actual seller.

I have just discovered that this is no longer the case and, as a result of the Sale and Supply of Goods to Consumers Regulations 2002 (which I was amazed to discover came into force on 31 March 2003!), the terms of a guarantee, or warranty, have now become contractual rights enforceable at law.

The regulations amend sections of The Supply of Goods (Implied Terms) Act 1973, The Unfair Contract Terms Act 1977, The Sale of Goods Act 1979, and The Supply of Goods and Services Act 1982, and were introduced as a consequence of EC Directive 1999/44/EC.  They seem to plug what I have long seen as a loophole in current consumer protection legislation.

The implications of the Regulations are quite far reaching, so I am surprised not to have picked up on this before now, and wonder if anyone yet has experience of their effectiveness.  For example, this extract from section 15, Consumer Guarantees, may get some minds whirring:

“the consumer guarantee takes effect at the time the goods are delivered as a contractual obligation owed by the guarantor under the conditions set out in the guarantee statement and the associated advertising”.

It was that bit about the “associated advertising” that caught my eye.  What can it mean?

The Regulations seem to open up a number of avenues for resolution, where disputes over the supply of unsatisfactory motorhomes etc. cannot be resolved between buyer and seller alone.  The implication is that a manufacturer can be compelled by the Courts to assume responsibility for repair or replacement of the goods, or to reimburse their cost.  Where motorhomes are concerned, and multiple warranties are provided, it would seem each warranty can be pursued selectively against any manufacturer whose product has become faulty.  However, it does seem that alternative routes to obtain redress must first have been exhausted.

Anyone wishing to pursue this avenue should, presumably, first consult Trading Standards, and thereafter a solicitor.

According to the Citizens Advice Bureau, even where goods were purchased outside the UK, but within the EU, the warranty can be enforced - provided the manufacturer (referred to as the “producer” in the Regs) has a branch in the UK.

There are also requirements for the supply of guarantees in clear English, with enforcement procedures against companies who fail to comply.

The CAB fact sheet is much easier to read than the Regulations, but is not a legal document.  See the following links to the Stationary Office website for the Regulations and the Citizens Advice Bureau website for the fact sheets.

For The Sale and Supply of Goods to Consumers Regulations 2002: http://tinyurl.com/lse6n takes you to the Regulations on the HMSO website.

For the Citizens Advice Bureau fact sheets on “Goods” and “Guarantees”: http://tinyurl.com/qcg49 takes you to the fact sheets page of the CAB website, where the sheets can be downloaded in PDF (Acrobat) format.

[Tony Jones]

I've not read your link in detail Brian, but if you've got it right (which you usually do!) it's excellent news for consumers of all kinds, but especially of high-value specialised goods like motorhomes.

I would think the reference to "associated advertising" means that even if a particular provision of the guarantee isn't in your personal paperwork, if it was displayed in the showroom, or in manufacturers press adverts, at the time of sale, then it's binding.

 

And (have I got this right?) these new rights were introduced purely because those evil dictators in Brussels have forced our poor downtrodden democratically-elected government to conform to European standards?

Well, I trust our resident Forum Europhobes will be up in arms, defending the right of the UK to have inadequate protection for its consumers :D !

[Vernon B]

Brian Kirby - 2009-11-11 3:57 PM

 

The regulations amend sections of The Supply of Goods (Implied Terms) Act 1973, The Unfair Contract Terms Act 1977, The Sale of Goods Act 1979, and The Supply of Goods and Services Act 1982, and were introduced as a consequence of EC Directive 1999/44/EC

“the consumer guarantee takes effect at the time the goods are delivered as a contractual obligation owed by the guarantor under the conditions set out in the guarantee statement and the associated advertising”.

What can it mean?

 

In short Brian it means jobs for Euro Lawyers of which Tony would strongly approve.

 

V

[bobalobs]

The " associated advertising " is on page 156 of november MMM where Fiat state " Excellent and comfortable performance in ALL conditions with a full load or UPHILL." Reverse included??!!

[Brian Kirby]

Vernon B - 2009-11-11 4:58 PM

Brian Kirby - 2009-11-11 3:57 PM

The regulations amend sections of The Supply of Goods (Implied Terms) Act 1973, The Unfair Contract Terms Act 1977, The Sale of Goods Act 1979, and The Supply of Goods and Services Act 1982, and were introduced as a consequence of EC Directive 1999/44/EC

“the consumer guarantee takes effect at the time the goods are delivered as a contractual obligation owed by the guarantor under the conditions set out in the guarantee statement and the associated advertising”.

/>What can it mean?

In short Brian it means jobs for Euro Lawyers of which Tony would strongly approve. V

Not sure how to respond to this.  May I suggest reading the linked fact sheets, and the Regulations, before venturing too many opinions?  There are no jobs for Eurolawyers, whoever they may be.  The Regulations are on the British "statute book" and the remedies are all via the British legal system.  Sorry if the above post was intended to be humorous, but the issue is quite serious for some.

[colin]

This is as I've argued with you many times, first you approach dealer/seller, they are at first stage responsible for any garrentees, as I have posted many times any person with a reverse problem (or any other) needs to report this to dealer/seller, it's then up to them to pass you on to Fiat or whoever, but the next stage is, are Fiat a manufacturer or a parts supplier? or are Swift, Adria etc. the manufactuer? This is not initialy the customers concern, unless the dealer/seller cannot get the problem fixed.

[Brian Kirby]

All the questions asked are answered in the Regulations and the CAB fact sheets.  Please folks, just read those before you sound off!  This is quite a change from what went before and, even though it has been law since 2003, it seems to have been slipped into statute relatively unannounced.

[Vernon B]

Brian Kirby - 2009-11-11 6:35 PM

 

Not sure how to respond to this.  May I suggest reading the linked fact sheets, and the Regulations, before venturing too many opinions?  There are no jobs for Eurolawyers, whoever they may be.  The Regulations are on the British "statute book" and the remedies are all via the British legal system.  Sorry if the above post was intended to be humorous, but the issue is quite serious for some.

 

 

Do get a life Brian.

 

No I haven't immersed myself in the details - preferring to leave such matters to the devil - but what I can guarantee (pun intended), having been involved in many many cases of expensive and distressing litigation is that the only beneficiares will be the legal profession - of a wide variety of nationalities. Moreover I would respectfully remind you that in the past I have been very supportive of your sound advice about going to law as the last resort and am surprised that you appear to see this new can of worms as a saviour for us motorhomers.

 

V

 

[Neil Hunt]

Hello Brian

 

Many thanks for this useful information, unfortunately you never know when you will need it and anything that restores some fairness and balance in contractual relationships must be welcome and positive.

 

I suspect it was another perceptive comment about "resident europhobes" that provoked the unnecessary ire and prickle.

[Tony Jones]

Guilty as charged! Sorry.

[Mickydripin]

 

Quite right Brian when things go wrong when buying anything that you have put your life savings in to it is serious.

 

I contacted my solicitor today with this information as I am going through a very stressfull court case and I was shocked that he did not know anything about this.

 

for two years they have been chasing what may be the wrong people (I may be wrong) he said that he had not heard of this and it looked very interesting I thought that solicitors should be well up on laws of this kind what he will do with it now I do not know but thanks to Brian and his inquisitive nose this info may be of great help to me thanks a lot Brian.

[Brian Kirby]

Vernon B - 2009-11-12 2:57 PM

Brian Kirby - 2009-11-11 6:35 PM Not sure how to respond to this.  May I suggest reading the linked fact sheets, and the Regulations, before venturing too many opinions?  There are no jobs for Eurolawyers, whoever they may be.  The Regulations are on the British "statute book" and the remedies are all via the British legal system.  Sorry if the above post was intended to be humorous, but the issue is quite serious for some./>

Do get a life Brian. No I haven't immersed myself in the details - preferring to leave such matters to the devil - but what I can guarantee (pun intended), having been involved in many many cases of expensive and distressing litigation is that the only beneficiares will be the legal profession - of a wide variety of nationalities. Moreover I would respectfully remind you that in the past I have been very supportive of your sound advice about going to law as the last resort and am surprised that you appear to see this new can of worms as a saviour for us motorhomers. V

Don't think I have advocated anything different in my post, from the above.  Turning to the courts must be the last resort. 

However, when that last resort has been reached, and a decision as to whether or not to sue has to be made, it seems to me advantageous to know that the seller is not the only entity against which one can proceed.

Small dealers, inevitably, have limited resources.  A small dealer who cannot remedy a defect, because the manufacturer won't perform under his warranty, presents a motorhome owner with a virtually irreconcilable dilemma.  It must surely be of some comfort to that owner to know that, under these regulations, he can, if necessary, directly sue the manufacturer to perform?

I wouldn't think that particular knowledge, which to my regret I lacked before Monday last, would be too much diminished in value if his solicitor turned out not to be British - so long as he won!  At least, it wouldn't worry me.

I still think you are missing an important point, somewhere, Vernon, mainly because you can't be bothered to read these Regs.  There is much more there than just court action.

[colin]

Mickydripin - 2009-11-12 5:10 PM

I contacted my solicitor today with this information as I am going through a very stressfull court case and I was shocked that he did not know anything about this.

 

Makes you wonder why you pay large fees for their services, we have recently obtained a large compensation package from a solicitor who messed up a land deal. We once consulted a so called specialist tax consultant and found he knew less than us. It pays to gen up yourself first then contact a professional.

[Brian Kirby]

An update on this.  I have at last managed to speak to a Trading Standards legal adviser on the implications of the Regulations in respect of expensive items such as motorhomes.  The advice is less encouraging than I had hoped, in that TS advise the Regulations create a slightly confusing picture.

Whereas they give the impression that a consumer may be able to sue the guarantor (he who issued the guarantee), they advise this will only prove worthwhile where there is a clear and provable breach of the terms of the guarantee.  In short, if the guarantee doesn't specifically say something is covered, and to what extent, in practise, it ain't!

However, they do advise the supplying dealer remains fully responsible at law for the goods he supplies, irrespective of the existence of any guarantees from whoever.  They advise that in respect of any defect that may arise in whatever part of a van, the buyer must go back to the dealer in the first instance.  It is for the dealer to provide the remedy.  If he chooses to refer the buyer to a third party under the terms of a warranty, whoever has issued the warranty, the buyer can refuse to do this and insist the dealer takes on the responsibility, or the buyer can do as suggested and take the vehicle to the warranty repairer himself.

If the buyer chooses the latter path, he should write to the dealer confirming that this is what he has done at the dealers suggestion, and that he is doing this to mitigate any further damage that may be caused by the defect, but that he still holds the dealer primarily responsible for repair of the defect.

He should keep writing to the dealer recording what he has done, what repairs have been attempted, and with what result.  If the warranty repairs are not reasonably satisfactory (however many attempts it may take to prove this) and the warranty process has been exhausted, he then should return to the dealer, and presses him for remedy.  If the dealer will go no further then, under present legislation, the buyer can only begin legal action against the dealer.  Seeking to sue the guarantor directly is theoretically possible, but is fraught with risk, being liable to prove extremely expensive and generally with great difficulty in proving breach.

TS also advise against seeking rejection of the goods, saying that with complex and expensive items such as motorhomes, their experience with this course has been very discouraging.  Part of the reason for this is that the cost of a motorhome places it outside the small claims track procedures, and almost certainly into the multi-track procedure, meaning the hearing may be referred up to to the High Court.  Hmmmmmm!

They seem generally to advise pursuing the matter of repair against the dealer, and allowing the court (generally a Judge) to decide whether all reasonable steps have been taken and whether the dealer is competent to make the repairs.  If the dealer cannot, the court should then rule that he must either compensate the buyer (probably the best solution being to seek a negotiated deal of some sort, possibly to take back the unsatisfactory van in exchange for a satisfactory one, with some possibility of a cash adjustment to account for use of the van in the meantime), or possibly to order the contract to be rescinded and the buyer put back financially where he was before the purchase.  This, however, may prove the "nuclear option" for the dealer, who may be unable to return all the buyer's money and meet the court costs, so may go bankrupt.  In that case it seems the court gets first bite at the dealer's assets for its costs, and the buyer joins the queue of creditors.  Not much comfort there.

It seems the best approach, when all else has failed, is to implement legal proceedings very much in sorrow and not in anger, making sure the dealer is aware you really, really, don't want to do this to him, so as to maintain cordial relations with him.  Then, once the proceedings have commenced, be alert for any opportunity to reach a negotiated settlement with the dealer.  Even if that involves temporarily taking ownership of a van you don't really want, (on the basis that goods are more easily traded than cash) it will probably be a better outcome than would be gained by pursuing the dealer to the end, and finding he folds.  Once you have the replacement van, so long as you have negotiated a good deal, you can always trade that against the one you really want from a different dealer.

Above all, it will be necessary to take advice from Trading Standards in the first instance, before writing to anyone, so that the right letters are written to the right people at the right time, and if necessary, to find a solicitor who is genuinely expert in consumer law matters, and not just the Joe from the High Street.