With March being National Bed Month, the spotlight is on beds and mattresses. Retailers and manufacturers must ensure they are meeting their legal obligations year-round. Make sure you’re compliant, with these key insights.
At the Furniture & Home Improvement Ombudsman, we are often presented with scenarios which involve both retailers and manufacturers and which highlight the uncertainty as to their respective relationships with consumers who purchase the end product, including items such as beds and mattresses. Here we explore some of the issues we come across and what the law says with regards to these, giving both parties a better understanding of their obligations and also the likely pressure points in their relationship.
Privity of Contract
This sets out contractual relationships in a supply chain and means that the consumer will contract with the retailer and the retailer with the manufacturer who will obtain raw materials from a supplier, and so on.
In practice this means that any remedy which the consumer is entitled to under the Consumer Rights Act 2015 would flow from the retailer, not the manufacturer and the retailer will not necessarily be able to pass the liability back up the chain.
Defective goods.
In the first 30 days the consumer has the right to reject goods which are faulty and which do not conform to contract. A repair can be agreed, but at this point this is at the consumer’s discretion.
After this 30 day period (known as the short term right to reject), the consumer has tiered remedies as follows:
- Repair or replacement in the first instance and then, if the repair cannot be carried out in a timely manner and without significant inconvenience to a consumer;
- Final right to reject (full or partial refund) or a price reduction.
It is crucial to note here that the retailer only has one opportunity to repair or replace notwithstanding what their terms with the manufacturer state. This is likely to cause tension where a manufacturer wishes to exercise a further attempt to repair in accordance with the B-B terms between them and their retailer customers. It is also unlikely that removing the furniture from the consumer’s home to repair it would constitute ‘insignificant’ inconvenience and any such arrangement would need the agreement of the consumer and perhaps an offer of loan furniture to lessen the inconvenience.
We have noted from retailers that the provision of loan furniture is not always forthcoming, however this is a good way of minimising the consumer’s inconvenience, could be offered in lieu of any financial settlement and may even be persuasive in discussions with a consumer in accepting a more significant repair.
Guarantees
We are often asked what the situation is when the goods are covered by a guarantee from the manufacturer. The legal position is that any guarantee cannot reduce a consumer’s statutory rights, therefore could not ‘contract-out’ of the remedies above. Remember that the consumer’s statutory rights are enforceable against a retailer and whilst, the retailer may direct a consumer to pursue their guarantee, they could not force the consumer to take this route and may even have to facilitate its operation if the consumer so wishes.
Under the Limitation Act 1980 the consumer has 6 years to bring a claim via the courts under contract in England and Wales and this means that in the event that the manufacturer’s guarantee has expired prior to this limitation, the consumer may still be able to pursue a remedy against a retailer subsequent to the guarantee period. Of course, should the guarantee extend the limitation period (e.g. 10 years/lifetime etc.) the remedy would then be dependent upon the terms of the guarantee if the statutory rights (and retailer liability) have lapsed.
Who should the consumer contact?
The consumer should contract the retailer in the first instance. It may be that the consumer could be directed to the manufacturer, for example to arrange a service visit to repair white goods, and if this is to speed up the resolutions process, it may be the most convenient and easiest means of doing so. If the retailer was suggesting this as a legitimate aid to speedy resolution, this would be perfectly acceptable. Bear in mind though that the consumer does not have to do so and could ask the retailer to follow this up for them or indeed pursue their statutory remedies.
If the retailer is insolvent and there is no subsisting guarantee, the manufacturer would not be forced to step into their shoes and it may be in such a case that the consumer is not entitled to any remedy unless they purchased via credit card and could pursue the financial recourse route as an alternative.
Evidence
During the first 6 months the burden rests with a retailer to prove that the issue did not exist at the point of delivery and manufacturer’s reports and opinions can be important evidence in assessing this. Whilst it is acknowledged that these are not independent per se, the manufacturer is often best placed to inspect the product in question and evaluate the specific issue. They are also well-placed to monitor complaints and systemically identify a problem with a particular product, which may set in motion a separate chain of events, such as a product recall.
Conclusions
Whilst the ultimate responsibility for recourse in a dispute with a consumer under the Consumer Rights Act 2015 rests with the retailer, manufacturers need to know the obligations that the retailer has, the pressure they face when dealing with consumers and how these impact the supply chain. Re-evaluating terms and conditions with retailers and the terms of their guarantees in light of these, will ultimately benefit the consumer and enable their retailer customers to deal fairly with the end user, ensuring confidence in the product and promoting responsible retail.
The Furniture & Home Improvement Ombudsman offers more detailed training on many aspects of consumer law, more details of which can be found at our website www.fhio.org
