CraigH

Can anyone give advice on this clause in a contract please:

Except as provided in sub paragraph 1 and 2 above, guarantees, undertakings, conditions or warranties, expressed or implied, statutory or otherwise in relation to the goods are hereby expressly excluded PROVIDED ALWAYS that the statutory rights of the customer in the case of a consumer sale shall remain in full force and effect. Company X will in no circumstances refund any monies paid by the customer or replace any goods in accordance with this clause 7.

Sub paragraph 1.....
a: making good by replacement or (at the option of company x): or

b: repairing defects or failures which under proper use appear therein

In addition company x must be reasonably satisfied that such defects or failure arose solely from the faulty design of the goods, defective materials used or workmanship. Provided however that no liability shall attach to company x:

i)unless company x is notified promptly in writing of the alleged defect or failure
iii) no repair alteration or remedy is made to the goods or the vehicle without express written permission of company x
iv) company x will not be liable in respect of the use of all or part of the goods or vehicle in any form of motor sport or for any purpose other than that for which they were not intended


Is this just legal jargon for saying that they abide by the statutory agreement and that's it?

Thanks in advance.

Diablo

Craig,

What it says is that the customer (where that customer is a consumer) only has their statutory rights and no additional responsibility will be accepted by the seller except where there are defects or failure arising solely from the faulty design of the goods, defective materials used or workmanship.

Under these circumstances the seller will accept liability and, at their discretion, repair or replace the goods as long as the seller is notified asap in writing of the alleged defect or failure and that no one else has tried to fix it (without express written permission of the seller) and that you haven't used all or part of the goods or vehicle in any form of motor sport or for any purpose other than that for which they were not intended.

HTH

D

Diablo

So basically, yes.

CraigH

cheers

[Edited by CraigH - 12/15/2003 3:04:37 PM]

CraigH

Hypothetically speaking.....

If you'd bought a product, ie a kit car, off a company nad it was plagued with problems, including some critical parts of the kit missing, and you had to purchase items for this kit which are a fundamental part of it, ie wheels, tyres, engine etc, and despite company x efforts, they could not resolve issues and it was basically a lemon, would you be entiled to claim costs for items purchased for the sole reason to be used (and are a fundamental item as said, not a sticker or something)with the kit when pursuing a refund?

Cheers again

Diablo

Craig,

Missing parts are not faults.

If they *should* have been part of the *Kit* as paid for, then you have a breach of contract situation.

But you'd have to successfully argue that you gave the company reasonable time to suppy what was missing if pursuing breach of contract as opposed to a refund under statutory rights re sale of goods act.

If they were not listed as part of the kit, then no, you'd only be entitled to a refund under your statutory rights (ie, what you paid for it)

Remember, fit for purpose as applies to a kit would be different from fit for purpose as applies to a complete vehicle.







[Edited by Diablo - 12/15/2003 3:33:30 PM]

Diablo

And as for *reasonable time*, that depends upon whether you subscribe to Trout/Rannoch's school of thought or to, say, Andy.F's

CraigH

LOL,

well say if this missing part were the instruction manual, which is quite an important part of a kit car, and say that the terms and conditions expressly stated that the kit had to be constructed as per the instruction manual, and say that the instruction manual never materialised because it hadn't been published, despite at the time of ordering being told that it was in print....

That would change things wouldn't it?

Diablo

It would certainly strengthen your case

D

Little Clanger

CraigH me ole China,

One important thing to remember is that the "statutory rights" to which the clause refers will encompass what are referred to as "implied terms" under either i) Sale of Goods Act and/or ii) The Supply of Goods and Services Act. These two babies give powerful protection to you when you buy as a consumer. Irrespective of the provisions covering defective materials / workmanship, the item must also be fit for its intended purpose and durable in nature. In short, it must "do what it says on the tin" and not for just 5minutes after you get it home.

These things are NEVER straight forward. The clause you have posted is called an exclusion clause as it either excludes or limits the company's liability in the event of certain situations. The company can never be sure they can rely on it until you have a problem with the product and the clause is tested to see if it is reasonable, dont feel you only have a limited comeback if the product fails. If it does, its always worth bashing the seller a bit to get a bit of satisfaction from them.

Good luck Chap

Clangers