Consumer rights vs T&C's

  Picklefactory 09:20 22 Mar 2012

Before I go ahead and possibly make a fool of myself, I'm wondering if anyone has any knowledge on this sort of question.

I've just bought a new kitchen from an online company, so it may be that distance selling also has some impact. My issue is that they failed on their delivery promise which caused me to have to pay two fitters and lose a days pay myself and the thing didn't arrive on the day promised. It was unfortunate that their delivery truck broke down, but am I wrong in thinking that it shouldn't be the customer who bears the cost of that? I am over £400 out of pocket due to their truck being unfit for purpose (The driver explained to me he had the oldest truck in the fleet which is due for imminent replacement). I did check out consumer rights, and it appears there is legislation stating consequential losses, due to late delivery, are the responsibility of the supplier, but then when I read the suppliers T&C's in detail, they have a clause directly excluding that. Is that the normal state of affairs that consumer rights can be simply circumvented by a clause in T&C's? I have spoken to the company and explained my dissatisfaction and have been promised twice now, that 'someone' will call me back to discuss this, but as yet there has been no call (Surprise, surprise).

Just touching on the distance selling element. All of the units are standard items selected directly from a menu on their site, as are the finishes. I have only had one bespoke unit made that is not a standard selection, in case that has any relevance at all.

Any suggestions folks, on whether I have any rights to pursue this further?


  spuds 09:57 22 Mar 2012

Whatever the case, a retailers or manufacturer's T&C cannot override present consumer and unfair contract laws.But getting re-address can some times get very difficult, especially if the other person 'knows their way around' these things.

Because a suppliers vehicle breaks down (because its the oldest in the fleet) as nothing to do with you, and you should not lose on this, by paying extra for the service being provided.

I would suggest that you visit your local CAB, Legal Advice Centre or contact for further advice.

You could also check to see if the supplier belongs to a trade association. If they do, then there might be some help in resolving any issues there. But I have found on previous occasions, that some of these trade associations can be more for their members, than the general public in resolving issues.

  Picklefactory 10:59 22 Mar 2012

Thanks spuds, that was my line of thinking, but I have no experience of this sort of issue. I'll pursue amicably with the supplier first, I think. They haven't refused any recompense as yet, being as they haven't bothered to discuss it with me at all. But I will push for an answer there first, but really wanted a bit of confidence as to whether I could refute their T&C's at all and apply a little pressure in that way. I'm happy to negotiate, but not happy with the current "We're really sorry, but it's just one of those things" response I'm getting now. Cheers

  bjh 11:30 22 Mar 2012

There might be some help here at Moneysavingexpert

Their forum is also pretty good at answering questions on this kind of matter.

I'd keep careful notes on all times, dates & conversations. Good luck!

  Picklefactory 11:38 22 Mar 2012

Thanks bjh I had found that, which is what made me question my rights in this regard initially, but then I went through the detail of the suppliers T&C and found their clause excluding any liability for late delivery, I wondered where I stood. I shall call the supplier again later today and push again for some definitive response, I shall also try and talk to somebody at Consumer Direct for further advice and take it from there. Hopefully, the supplier will be reasonable, you never know, but I'm expecting the worst.

Thanks all

  Picklefactory 13:18 22 Mar 2012

Brief update. Have spoken to Consumer Direct who also agree that it doesn't sound fair and that unfair T&C's are not necessarily binding, but that may well need to be decided by a judge. They also recommended I talk to my credit card company.

I've also called the supplier yet again, and getting the same response that someone will definitely call me to discuss this...... we will see!!

  Forum Editor 18:32 22 Mar 2012

"....but then I went through the detail of the suppliers T&C and found their clause excluding any liability for late delivery, I wondered where I stood."

Where you stand is as follows.....

A vehicle breakdown is a circumstance that is beyond the supplier's control, and as such it means that the supplier cannot be held liable for loss or consequential damages suffered by you. It is perfectly legal for a seller to limit liability for certain breaches of consumer contracts, such as late delivery, if it is fair and reasonable in the circumstances to do so, and you will find that most sellers include a clause about late delivery in their terms and conditions.

I'm very surprised, therefore, to hear that Consumer Direct have told you that the clause in the Terms and Conditions of the contract "doesn't sound fair". Based on the information you've provided I would be of the opposite opinion, and so would thousands of sellers who have an identical clause in their Terms and Conditions.

You will obviously decide what action to take, but my advice is that you should try to negotiate a goodwill gesture with the supplier. I doubt that you have a strong case under current consumer legislation.

  Picklefactory 08:41 24 Mar 2012

FE Sadly for me, you are spot on. I have never given up on trying to negotiate some such agreement with the supplier, unfortunately, on the 5 occasions I have now called to try and do exactly that, I just get fobbed off by a customer service rep with the constant repetition of 'someone will call you'. That has going round and round for the past 5 days now. Somehow, I don't think that call will ever come or the chance to negotiate anything at all.

I did also speak to a solicitor who concurs exactly with your prognosis.

Looks like I will just have to take the loss on the chin, although I still think it's unfair that I should pay for the suppliers transport not being fit for purpose.

I think this is resolved..... unfortunately

Thanks all

  Forum Editor 13:26 25 Mar 2012

I can fully understand your disappointment, but you really don't have any case to fight here.

The 'fit for purpose' argument wouldn't hold up because all vehicles are fit for purpose until they break down. It's not something that can be predicted, and therefore comes under the 'circumstances beyond our control' heading, unless you could prove that the supplier had neglected routing vehicle maintenance, thereby making a breakdown more or less inevitable at some point.

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