Adams Right to Return and Misrepresentation in Sofa Purchase

Introduction

The issue involved in this case is whether Adam as a non-consumer buyer has a right to return and refund of the sofa. The law applicable in this case is contained in the Sale of Goods Act 1979 (SGA 1979). The Consumer Rights Act 2015 (CRA 2015) is not applicable in this case because Adam is a non-consumer buyer buyer seeking law dissertation help. A sole trader who is operating a business, even if such business is operated from his private dwelling is not considered to be a consumer for the purpose of this CRA 2015. Therefore, the remedy for such non-consumer buyers are to be found under the SGA 1979. Another issue in this case is whether there is misrepresentation by the sales agent at DanishDesign Ltd, who said that the sofa bed that would be delivered to Adam is “more or less the same” as the one at the display.

Analysis

The issue in this case arises out of Adam’s purchase of “Copenhagen 3-seater black sofa with sofa bed” from DanishDesign Ltd on 1 August 2019. Adam paid £5000 in cash for the sofa and an extra £250 for delivery (£5250 in total). The sofa was to be delivered and assembled on site by Saturday, 28th September 2019. Due to wrong sofa being delivered, a replacement was delivered on 10th October 2019. However, the sofa began to creak after a week.

The buyer is justified in his rejection of the goods if the goods are not in compliance with any of the implied terms in SGA 1969. Thus, the buyer can exercise his right to reject if the goods are different from the description (Section 13), or are of unsatisfactory quality and fitness (Section 14 (2)), or are not fit for a particular purpose (Section 14 (3)), or do not accord with the sample (Section 15). Section 53 of the SGA 1969 allows the buyer to reject goods and treat as breach of warranty to reduce or extinguish price or bring an action against Seller for breach of warranty. Section 53(5) allows buyer to sue for breach of warranty of quality. Thus, if the buyer has been delivered goods that are not fit for the purpose for which sold, they can reject goods under Section 14. Delivery of goods that are of unsatisfactory quality or unfit for the purpose for which they are generally sold, also lead to breach of warranty by the seller. The remedy for such breach of warranty is provided in Section 53 which allows buyer to reject the goods and maintain an action for damages.

For a slight breach, a non-consumer buyer will not be able to exercise a right to reject goods. SGA 1979, Section 15A acts as a restriction on the right to rejection for non-consumer buyers, because of which they cannot exercise the right to reject goods automatically in case of breach of SGA 1979, Sections 13-15. It needs to be seen how this impacts Adam’s position. Section 15A provides that in cases where the breach of condition is not significant in nature, and it would not be reasonable to allow the buyer to reject the goods, even in case of breach of Sections 13-15, then the non-consumer buyer would not be able to treat the breach as a breach of condition, but as a breach of warranty. This would mean that the buyer does not have the right to reject the goods, but he has the right to damages. However, as per Section 15A (3), the burden of proof is on the seller to show that the defect is slight enough for the rejection of the same by the buyer to be termed ‘unreasonable’.

The parallel provision in SGA 1979, Section 30 (2A-2E) limits rejection of goods where the defect in the goods is considered to be only slight in nature and so a non-consumer buyer

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1. Truk (UK) Ltd v Tokmakidis GmbH [2000] 1 Lloyd's Rep. 543.
2. Jill Poole, Casebook on Contract (Oxford University Press 2014).

does not get to reject the goods. Whether the defect is slight or not is subject to an objective inquiry and not to subjective criteria. In Re Moore and Co. v Landauer and Co., the court considered the supply of goods in 24 boxes instead of the prespecified 30 boxes as reason enough to allow buyer to reject the goods. In Arcos v Ronaasen, the court allowed the buyer to reject timber of 9/16 inches which was to be 8/16 inches. According to Trietel, the Arcos case under Section 15A would be considered to involve a defect that is not ‘slight’ and the buyer would be allowed to reject the goods, although in the Re Moore case it is possible that the defect would be considered to be slight for the purposes of Section 15A.

In the present situation, the issue arises due to the creaking in the sofa bed only one week of purchase. Adam may argue that the defect is not slight, and the creaking is a possible indicator of structural defects in the sofa bed. An argument was made out successfully in J H Ritchie Ltd, by the plaintiff/buyer that the defect is not slight if it may be an indicator of more serious defects in the goods. The plaintiff in JH Ritchie was allowed to reject the goods even after he had taken delivery of the goods and used them because there was a flaw in the goods. In the present case Adam may argue that the defect in the sofa bed is not slight and may be an indicator of some more serious defects in the bed.

A buyer may not be able to exercise right of repudiation and rejection of goods and only claim damages if he has intimated acceptance of goods to the seller. Thus, the buyer loses the right to reject the goods if he expressly intimates the acceptance of the goods, or retains the goods for significant period of time without intimating rejection of the goods. The question is whether the buyer has accepted the goods simply because he has paid for the goods. SGA 1979, Section 27 provides that the buyer must accept and pay for the goods and Section 28 says that the buyer must pay at the time of the delivery. Payment does not signify acceptance. Where goods being delivered were not previously examined by the buyer, acceptance is deemed to be given only after the buyer has had reasonable opportunity of examining the goods for ascertaining whether they accord with the conditions of the contract. Under Section 35, the buyer will be deemed to have accepted the goods after he intimates acceptance to the seller (Section 35(1)a), or does an act in relation to the goods (for example, selling the goods), which is not consistent with the ownership of the seller (Section 35(1)(b)), or retains the goods even after reasonable time has lapsed (Section 35(4)).

In the present situation, Adam may argue that he has not done any act inconsistent with the rights of the seller and has not retained the sofa bed after relapse of reasonable time as he has approached the seller with his complaint in 7 days. In Bernstein, court held that the buyer is deemed to have accepted the goods under Section 35 if he retains the goods and does not make any complaint about them beyond a reasonable length of time.

Irrespective of maintainability of Adam’s right to rejection, he also has another remedy against DanishDesign Ltd. In Gregg & Co (Knottingley), Allied Glass Containers v Emhart Glass, the court held that even in the event of loss of the right of rejection due to the buyer

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3. Neil Andrews, Contract Law (Cambridge University Press 2011) 503.
4. Re Moore and Co. v Landauer and Co. [1921] 2 KB 519
5. Arcos v Ronaasen [1933] AC 470
6. GH Trietel, The Law of Contract (12th ed, London: Sweet & Maxwell 2007) 18-054.
7. J H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9
8. Ibid.
9. Whitecap Leisure v John H Rundle [2008] EWCA Civ 1026.
10. Bernstein v Pamson Motors [1987] 2 All ER 220.
11. Gregg & Co (Knottingley), Allied Glass Containers v Emhart Glass [2005] EWHC 804 (TCC).

choosing to retain the goods in spite of the defects of which they are aware, the buyer may enforce the seller’s duty to remedy defects. A failure on the part of the buyer can be taken to be repudiation of the contract. DanishDesigns on the other hand, can argue that the breach is slight and not substantial for the purpose of SGA 1979, Section 15A in order to deny claims by Adam as a non-consumer buyer.

The sales agent made a statement that the sofa that would be delivered to Adam is “more or less the same” as the one on display. The question is whether there is misrepresentation on part of the sales agent. The Consumer Protection from Unfair Trading Regulations 2008 prohibits unfair commercial practices, misleading actions, and misleading omissions. The Misrepresentation Act 1967 gives remedy to buyer against fraudulent or negligent misrepresentation and Consumer Protection Act 2015 gives remedies for goods that don't answer to a specific quality, condition or description. DanishDesigns can be held liable for negligent misrepresentation if it is found that the statement of the agent was misleading.



Adam as ‘consumer’ in this transaction:

If Adam is a consumer buyer, then the applicable law to him will be the CRA 2015. CRA 2015, Section 2(3) defines consumer as someone “acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession”. Section 9 of the CRA 2015 provides implied terms, the breach of which may lead to the rights of the consumer to reject the goods. Thus, the consumer can reject goods is they are not of satisfactory quality, or as per the standard expected for description, price or other consideration, or where they do not comply with the quality conditions, including state, fitness, appearance, freedom from minor defects, safety and durability.

In the present situation, Adam may claim the right to reject the sofa bed under Section 9(3)(c), which provides that the goods should not have any minor defects. CRA 2015, Section 9(3) provides that in case of breach of any of the terms, buyer has certain remedies against the seller. The remedies that are available to Adam as a consumer under the CRA 2015 include short-term right to reject the sofa bed (sections 20 and 22). If exercised, Adam has the right to reject the sofa bed within 30 days of purchase and demand a full refund. Adam can also ask for the right to repair or replace the sofabed (section 23).

Conclusion

Adam can argue that he has the right to reject the sofa bed on the ground that the defect is not slight for the purposes of Section 15A. In any case, he can argue for the right to remedy the defects. If he argues as a consumer, then he has right to reject under CRA 2015.

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12. Elizabeth Macdonald, Ruth Atkins, Koffman & Macdonald's Law of Contract (Oxford University Press, 2014) 357.
13. Andrew Burrows (ed.), Principles of English Commercial Law (Oxford University Press, 2015) 74.
14. Smith v. Land and House Property Corp (1884) 28 Ch D 7, CA.
15. CRA 2015, Section 2(3).
16. CRA 2015, Section 9(1).

Table of Cases

Arcos v Ronaasen [1933] AC 470

Bernstein v Pamson Motors [1987] 2 All ER 220.

Gregg & Co (Knottingley), Allied Glass Containers v Emhart Glass [2005] EWHC 804 (TCC).

J H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9

Re Moore and Co. v Landauer and Co. [1921] 2 KB 519

Smith v. Land and House Property Corp (1884) 28 Ch D 7, CA

Truk (UK) Ltd v Tokmakidis GmbH [2000] 1 Lloyd's Rep. 543.

Whitecap Leisure v John H Rundle [2008] EWCA Civ 1026.

Books

Andrews N, Contract Law (Cambridge University Press 2011).

Burrows A, Principles of English Commercial Law (Oxford University Press 2015).

Macdonald E and Atkins R, Koffman & Macdonald's Law of Contract (Oxford University Press 2014).

Poole J, Casebook on Contract (Oxford University Press 2014).

Trietel GH, The Law of Contract (12th ed, London: Sweet & Maxwell 2007).