Know Your Rights

As we are now fast approaching Christmas and our Summer holidays are a distant memory, no doubt you are now considering the expensive task of buying gifts.

Understanding Your Consumer Rights when buying gifts this Christmas 

As a consumer, the law does not expect you to negotiate with shops when buying gifts in relation to certain Terms & Conditions of sale. For once the law assists you without you having to go to the trouble of negotiating a contract with the merchant.

You would not expect to go into Halfords for buying gifts and start negotiating the terms of the purchase with the Sales Assistant. Normally when you go into a store the only item for negotiation is the price – and more often than not even that is not negotiable. Taking the example of the bicycle, the Sale of Goods Act 1979 (as amended) implies certain Terms & Conditions upon the merchant. The terms for buying gifts are numerous, however the most important terms are as follows

• The merchant has the Title to sell the goods to you (to confirm the merchant actually owns or is entitled to sell the goods to you).
• The goods will be of satisfactory quality (previously known as merchantable quality).
• The goods will be fit for the purpose for which you purchased them.
• The goods correspond with the description provided for them.

Understanding Contractual Obligations

If the goods you purchase from the merchant do not work, then the merchant is in breach of contract as the goods are not of satisfactory quality. Your part of the contract was to pay the purchase price, the merchant’s part of the contract is to supply you with goods which are of satisfactory quality which you can use. If the merchant is in breach of contract then your remedy is damages, namely to put you back into the position you were in but for the breach of contract. Usually, this will be a full refund of the purchase price. Alternatively, you may be willing to accept the repair of the goods however you are not obliged to if the fault was apparent at the time of purchase.

Still using the bicycle example, if you open the box and one of the wheels falls off then I would recommend you take the bicycle back to the shop and ask for either a replacement or a refund. If when you open the box both wheels are intact and subsequently the wheel falls off after two or three weeks then you are more likely to have a repair carried out on the bicycle.

When buying gifts, some presents may not be a physical item such as a bicycle, but may instead be serviced, for example, a dance lesson. Again, the law protects people in this instance for buying gifts, however it is usually more difficult to prove that a merchant has breached a contract which relates to services. It is an implied condition that those providing services to a consumer must do so with reasonable care and skill. Using the dance lesson example, if the person providing the dance lesson has two left feet and is unable to teach the pupil how to dance then that would be a breach of contract.

It is implied that the dance teacher can actually dance, and is able to teach a pupil to dance. The fact that the dance teacher is being paid for their services would be sufficient evidence to show that they are acting in the course of a business. More and more of us are buying goods and services online. As it is not possible to inspect the goods online, apart from a flattering picture of the goods, you are entitled to send the goods back if they do not correspond with the picture or the features which are advertised with those goods. 

The Distance Selling Regulations 2000 apply to such online contracts. This provides the consumer with a cooling off period of 7 days from receipt after buying gifts. You must write to the merchant to advise them that you wish to return the goods is usually acceptable (particularly as it would be an online service), and hidden in the terms and conditions of the website will be the address you need to send the goods to. Normally this will not be at your expense. It also applies when you simply change your mind about the goods. If you buy goods in a shop you are not legally entitled to return them if you change your mind, but all reputable retailers have a goodwill policy which allows you to do so.

If you are buying gifts which are worth more than £100 in value then please use a credit card if at all possible. Section 75 of the Consumer Credit Act 1974 provides you with an extra line of attack against poor goods and services provided by a merchant. The credit card company will be jointly and severally liable for any breach of contract by a merchant. This is particularly useful when the merchant goes out of business or attempts to fob you off by ignoring your complaints. The credit card company will normally tell you to contact the merchant to deal with the complaint however that is wrong. You can choose whether to complain to the merchant or the credit card company – the choice is yours. The line of least resistance is always the credit card company, which will normally have its own remedy against the merchant in any event. 

My experience of credit card companies when buying gifts is that they too attempt to deflect the problem back onto the merchant initially however do not take no for an answer. As the credit card company are jointly and severally liable for any breach of contract it is often a great deal easier to extract a remedy from the credit card company by reminding them of their obligations under Section 75 of the Consumer Credit Act.

It is a criminal offence for merchants to deny a consumer their statutory rights in relation to some of the above-implied terms (which are often referred to as your statutory rights) when buying gifts. Some smaller shops have signs stating “We do not offer refunds”. Having such signs in their shop is a criminal offence and shopkeepers may be prosecuted by Trading Standards if they do not readily agree to remove such signs.

Most merchants are reasonable with buying gifts and will readily assist you in the event that the goods sold by them are not of their usual standard. In the unlikely event that you come across a less-than-helpful merchant, I do hope the above will be of assistance to you.