10 replies to this topic

[knirirr]

I spotted this forum whilst Googling for information on the sale of goods act...
Anyway, I recently upgraded my contract with Orange, having noticed that it would save me a few pounds per month to do so. This upgrade came with a new phone, so I chose a Samsung U600 on the grounds that it had a good camera and the only other phones I would be permitted were out of stock or unsuitable. Whilst in the shop, I had this exchange with the salesman:

Me: I see that there's a Windows driver/software CD in the box, which isn't much good to me.
Him: Do you have a Mac?
Me: Yes.
Him: Don't worry, phone manufacturers are very good these days and you will find Mac software on their web site. They just don't bother to put it in the box.

Unfortunately, no such software is available and Mac connectivity turns out to be poor with this phone. Some file transfer may be done via bluetooth, but the USB connectivity is not very good and no address book synchronisation is possible. Also, I found the camera interface to be difficult to use and the camera too slow to be of much use. The phone is not actually faulty, just unpleasant to use and inferior to what I had expected based on the discussions in the shop. So, after 6 days I asked if I may exchange for another similarly priced handset (expecting perhaps to have to pay a modest re-stocking fee).

It turns out that only new customers are permitted to exchange their handset within 14 days, and according to Orange customer services this is also extended to people who have ordered their phone over the internet, the reason being that if they buy from a shop they will have had chance to see it first. Of course, seeing a dummy on the shelf is by no means the same as trying the phone out, which is when any issues will arise. However, customer services said that they thought that this might be "mis-selling" based on the comments above and that I should discuss it with the shop manager.

When I raised this in the shop they suggested that the only ways of changing the handset would be to make more than one fraudulent claim upon Orange Care (i.e. to state that the phone is faulty when it is not), which would eventually result in the phone being replaced with a different model, or to pay a £350 upgrade fee. I don't fancy either of these options on the grounds of honesty and cost, respectively. I was not able to discuss customer support's mis-selling comments with the manager due to her being too busy, but plan to write a letter.

If the handset cannot be changed, I would like to cancel the contract and return the handset (paying for any calls &c. I have used until then, of course). Does anyone know any way to go about this? If it cannot be done and I am stuck for the next 18 months with an unsuitable phone then I suppose I will simply have to be more careful with the next company I choose.

Thanks for any suggestions.

[Swampie]

The rules are simple.

You go into a shop and purchase a phone, you have no legal right to cancel.
Order same phone from same store over the internet, mail order or phone, and you have 7 days to cancel the order (Distance Selling Regulations).  Note that legally, starting to use the service/handset deems you having accepted the purchase and you lose the right to return.  It is not a 7 day trial.  The purpose is to give the customer the same rights to view the purchased product as they would have had in a physical store.

Above your statutory rights, Orange (currently, they're planning on dropping this I understand) provide - to new contracts - a 14 day return option.  This DOES include the right to use the service and handset.  This does not apply to upgrades, although upgrades done over the phone/internet would be subject to the Distance Selling Regulations thus giving you a 7 day cooling off period.

Orange are one of the few networks to provide this additional 14 day return service, and as far as I know, none of them do a better service in this respect.

However, as you said Customer Services suggested, this sounds more like a mis-selling issue.  You claim that you asked for Mac support - had you made it clear what features you wanted, and they turned out to be missing - then that would definitely be mis-selling.  This would come under the "Not fit for purpose" section of the Sales of Goods Act.  This states that if you ask for advice from a retailer, making it clear what the purpose is you want the goods for, and what you require of it - if the good which the retailer suggested met those requirements actually failed to - that would be "not fit for purpose" and eligable for a return.  This is your statutory right.  If this applies to you, and the store is refusing to accept this - speak to your local Trading Standards office to confirm your rights, and specifically what you should do.  I understand they're often very helpful and whilst may not take action on your behalf, will often be able to give advice about the situation.

Hope that helps,

D

[knirirr]

Swampie, on Sep 22 2007, 17:52, said:

You claim that you asked for Mac support - had you made it clear what features you wanted, and they turned out to be missing - then that would definitely be mis-selling.  This would come under the "Not fit for purpose" section of the Sales of Goods Act.

Thanks for your comments. I suppose that that point could be debated, for I did not specifically say "I want to back up my address book" or similar, though I did make it very clear that I have a Mac and was expecting to use the phone with it.
A simpler plan, I suppose, is to buy a phone that will work for me (e.g. a V3, KRZR or whatever), stick my SIM in that and sell the U600 on Ebay. Am I correct in assuming that since I have signed the contract then the U600 is mine to dispose of in this way?

[hockeyump]

Section 13 of the Sale of Goods Act

13 Sale by description
(1) Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description.(1A) As regards England and Wales and Northern Ireland, the term implied by subsection (l) above is a condition.
(2) If the sale is by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
(3) A sale of goods is not prevented from being a sale by description by reason only that, being exposed for sale or hire, they are selected by the buyer

It would seem to me that the salesman made it clear that there was Mac software available for the phone and that you made your decision to buy the phone partly based on that information. As there is no software it is also clear that the good do not "correspond with the description" as given by the salesman and therefore subject to Section 48A of the Act. The main question is if the salesman had said there is no software for a Mac would you have proceeded in buying the phone? If your answer is no then you relied on that information/description which was wrong.

48A Introductory
(1) This section applies if
(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
(B) the goods do not conform to the contract of sale at the time of delivery.
(2) If this section applies, the buyer has the right
(a) under and in accordance with section 48B below, to require the seller to repair or replace the goods, or
(B) under and in accordance with section 48C below
(i) to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or
(ii) to rescind the contract with regard to the goods in question.
(3) For the purposes of subsection (1)(B) above goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date.
(4) Subsection (3) above does not apply if
(a) it is established that the goods did so conform at that date;
(B) its application is incompatible with the nature of the goods or the nature of the lack of conformity.

It is seems that 1(a) and (B) and you have the rights under 2(B)(ii) to rescind the contract. Remember that it is your decision and not that of the shop or Orange. You do not have to accept a replacement phone if you don't want to (though this might be an amicable solution and you might be able to negotiate a better deal/phone). Also note that because 13 (1)(a) makes it a "condition" it is a criminal offence to try and wriggle out of it. The only way Orange can get out of it is if the software required becomes available AND they supply it to you. Telling you where to go on the Internet doesn't count.

Edited by hockeyump, 02 October 2007 - 09:17 AM.

[stevej26uk]

Im afraid orange are very bad for this hence my switch to t-mobile, i purchased a handset about a year ago from them, it was clearly faulty ( kept resetting itself, missing calls etc)took it back into the shop to be told they wont do anything unless I phoned customer services myself.
Even though  i had only purchased it 3 days before!
So went home phoned customer services 45 mins later i was told they would have to forward it to tech support who would contact me in 48 hours !!
Returned to store who said they would do nothing without a fault code frokm customer services, told them I wanted my money back, was told I want entitled to it back all the could do was an exchange but I would have to wait for the fault code. Tech support phoned back eventually and gave me a fault code, which I took to the shop after being treated like a bit of dirt they phoned customer services (even though they told me they werent able to) and agreed the exchange.
Luckily it was only payg and I have sinced sold handset and signed up with tmob, who incidentally I know for a fact exchange the mobile for any model within the first 28 days as at first I selected compact 3 and then decided i would actually benefit from the vario 3 which they did know problem.
I think your well within in your rights to cancel contract within 14 days, if not take it higher up within orange then report it ofcom (industry regulator).
As for selling handset on ebay, you legally cant do that until your contract nearing the end, 11month on a 12 month contract, 17th month on a 18, as you got the phone for free you are paying for it in the line rental and it technically belongs to them until you have completed your contract at which time it becomes your phone.
Although many people do buy sim free handsets and sell the phone they used to get the contract and I think as long as you keep line rental paid, they wont say anything but I fairly sure technically its a breach of your contract.

[knirirr]

stevej26uk, on Oct 2 2007, 20:26, said:

As for selling handset on ebay, you legally cant do that until your contract nearing the end, 11month on a 12 month contract, 17th month on a 18, as you got the phone for free you are paying for it in the line rental and it technically belongs to them until you have completed your contract at which time it becomes your phone.

Do you know of any written confirmation of this? I have looked, but could not find it.
If it is the case that they can help themselves from my bank account for 18 months, or charge me a fee if I end the contract, then is the handset cost not covered by that?

[stevej26uk]

knirirr, on Oct 2 2007, 21:50, said:

Do you know of any written confirmation of this? I have looked, but could not find it.
If it is the case that they can help themselves from my bank account for 18 months, or charge me a fee if I end the contract, then is the handset cost not covered by that?

having trawled through my tmob contract i couldnt find specific mention of it, my friend used to work for o2 up until a month ago, so i asked him, his response was more or less as long as you keep up the payments on the line rental until end of contract you can sell it and nothing will be said, however if saay you were to stop paying the line rental after 2 months the mobile company can ask you to return the handset although, for them to get the money back they will normally only ask to you to make payment of the amount of the the contract e.g 18months of line rental. The biggest problem is that the phone you sell is has a unique imei number and the operator can block this at anytime. (although he admitted this was unlikely for them to do so)

Hope you can get this sorted I wouldnt want to say to you yes its legal to sell it or no its not because I really dont know for sure only what I have been told.
I think you are still within your rights to exchange it for an alternate phone.
I wish you luck and if I find anything concrete about selling the phone within contract period I will post.

[Swampie]

Once the contract has been agreed, the handset is yours to keep.  In the airtime contracts I've seen I've never seen any reference to the supplied handset - but they do make reference to payment of outstanding charges - ie. x months @ £y per month.

If you're in breach of contract, they don't care about the handset - they want their line rental - that's all.

This is *exactly* why having a faulty handset is no reason for cancelling an airtime contract.

[hockeyump]

I don't think anyone would have any problem in proving that charging for a service that is not being supplied falls foul of section 5 of the Unfair Terms In Consumer Contracts Regulations 1999

Statutory Instrument 1999 No. 2083
The Unfair Terms in Consumer Contracts Regulations 1999

Unfair Terms
     5.  - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Effect of unfair term
     8.  - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

Orange are trying to pursue me for money they claim I owe them for the last two months of a contract which I refused to pay. Every time I challenge their Debt collectors using this point Orange change Debt collectors. So far 7 collection agencies must have told them they don't have a leg to stand on.

Edited by hockeyump, 11 October 2007 - 06:23 AM.

[Swampie]

hockeyump, on Oct 11 2007, 07:18, said:

I don't think anyone would have any problem in proving that charging for a service that is not being supplied falls foul of section 5 of the Unfair Terms In Consumer Contracts Regulations 1999

Statutory Instrument 1999 No. 2083
The Unfair Terms in Consumer Contracts Regulations 1999

Unfair Terms
     5.  - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Effect of unfair term
     8.  - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

Orange are trying to pursue me for money they claim I owe them for the last two months of a contract which I refused to pay. Every time I challenge their Debt collectors using this point Orange change Debt collectors. So far 7 collection agencies must have told them they don't have a leg to stand on.

Was that in reply to my post, or just a general discussion about your situation.  It's not clear why you're disputing paying the last 2 months of a contract (no idea why the contract ended early) - or whether it has any reference to the discussion about ownership of a handset.  Could you explain?

Going out on a limb/guessing the situation (probably wrongly!), if you voluntarily ended your contract early (eg. get a PAC to transfer number elsewhere, thus ending your service), then you're still liable for the remaining months of your minimum term regardless of whether Orange provided any service for those remaining months.  The contract is not unfair to state that the you're tied to paying Orange 12x £xx per month (or 18 x £xx per month) because this minimum term is used to determine the handset subsidy and line rental cost.  In fact, these terms are clearly stated in the airtime contract.

An example of an unfair contract is one which says that Orange can arbitrarily cancel your contract/airtime at any time without any fault of yourself (eg. you've adhered to all terms of your contract) and you'll still be liable for remaining payments.  Basically, they're to protect against unbalanced terms.

If you cancelled your contract by activating a valid early-termination clause (eg. excessive increase in charges etc), then you should not be liable for any remaining rental.

[knirirr]

The answer in the end turned out to be a special delivery letter to the shop manager, mentioning the sale of goods act. This resulted in a swift replacement of the handset with a different model that was in stock (Motorola V8).
Unfortunately, the V8 (unlike, for example, the K1) turns out to not be well supported by Apple, but it has much more functionality than the U600 so I am able to approximate the functions I need. It is also much more pleasant to use after purging the Orange sidebar.