Return of defective goods - Consumer Law
A recent European case has provided some useful guidance on concerning the return of defective goods under the Sales and Guarantees Directive (1999/44/EC), as implemented in the UK by the Consumer Rights Act 2015.
The Directive (and the Consumer Rights Act) is silent as to whether the consumer must return defective goods to the seller, or if the seller must collect them but goods must be brought into conformity “free of charge”.
In the recent case of Christian Fülla v Toolport GmbH the consumer purchased a defective tent. The court held that whether or not the consumer is obliged to return the defective goods to the seller for repair or replacement or whether they should merely allow the seller to collect them should be determined on a case by case basis.
The main aim of the Directive is to protect consumers from financial burdens which might prevent them from asserting their rights. This does not necessarily require the seller to pay the consumer return costs in advance but the consumer should not have to pay costs and wait for their refund if the costs of return are enough of a financial burden to deter the consumer from exercising their rights.
In the Fülla case, an obligation to return the tent would be burdensome and cause a significant inconvenience to the consumer. Mr Fülla was not, therefore required to pay advance postage to return the tent. Toolport should have either advanced the cost of return to Mr Fülla or made alternative arrangements for return which would not have caused significant inconvenience to him.
The court also provided guidance that where a consumer wants to exercise their right to rescind a contract due to a seller failing to repair or replace defective goods within a reasonable time they must have:
a) informed the seller the goods are defective;
b) confirmed whether they want a repair or replacement; and
c) made the goods available to the seller. It is the seller, however, who should suggest how the goods be made available.
Posted on 07/04/2019 by Ortolan
