Q&A – 5 May 2014
Defective electronic product
I bought a DVD player from a store in Kariakoo which was faulty. I returned it, and had to force my way in to push for a replacement as they were declining. After an hours tussle, the shopkeeper agreed and gave me a replacement which also did not work the next day. I returned and this time around they totally declined to replace or refund my money. They showed me a sign saying that anyone buying was doing so at their own risk, and that goods once sold were non-returnable and nonrefundable. They produced to me a piece of paper with what they said were their standard trading terms whereby it was written that goods once sold cannot be returned or refunded. My friend who knows the law says that this condition puts my case on a weak footing. What should I do? It is so unfair for the shopkeeper to keep my money without me enjoying the DVD player.
LS, Dar
What comes automatically to your rescue is the Fair Competition Act 2003 (“FCA”) which is an act to promote and protect effective competition in trade and commerce, to protect consumers from unfair and misleading market conduct and to provide for other related matters.
The FCA provides for quality of products and states in section 31 (l) Where a person supplies, otherwise than by way of sale, by auction, goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section: (a) as regards defects specifically drawn to the consumer’s attention before the contract is made; or (b) if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
Hence if the defect was not brought to your attention, or the defect was revealable during examination of the product than you are not eligible for a refund. However in your case it seems more likely that this was not brought to your attention and you could not have known that there was a defect.
Furthermore, section 35 states that (I) Where: (a) a person supplies goods to a consumer in the course of a business; and (b) there is a breach of a condition that is, by virtue of a provision in this Part, implied in the contract for the supply of the goods, the consumer is, subject to this section, entitled to rescind the contract by: i) causing to be served on the supplier a notice in writing signed by him giving particulars of the breach; or (ii) causing the goods to be returned to the supplier and giving to him either orally or in writing, particulars of the breach. (2) Where a consumer purports to rescind under this section a contract for the supply of goods by any person, the purported rescission does not have any effect if. (a) the notice is not served or the goods are not returned within a reasonable time after the consumer has had a reasonable opportunity of inspecting the goods; (b) in the case of a rescission effected by services of a notice after the delivery of the goods to the consumer but before the notice is served:
(i) the goods were disposed of by the consumer, were lost, or were destroyed otherwise than by reason of a defect in the goods; (ii) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to present the goods from becoming unmerchantable; or (iii) the goods were damaged by abnormal use; or in the case of a rescission effected by return of the goods, while the goods were in the possession of the consumer: (i) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to prevent the goods from becoming unmerchantable; or (ii) the goods were damaged by abnormal use. (3) Where a contract for the supply of goods by any person to a consumer has been rescinded in accordance with this section: (a) if the property in the goods had passed to the consumer before the notice of rescission was served on, or the goods were returned to him, the property in the goods re-vests in the supplier upon the service of the notice or the return of the goods; and (b) the consumer may recover from the supplier as a debt, the amount or value of any consideration paid or provided by him for the goods. (4) The right of rescission conferred by this section is in addition to, and not in derogation of, any other right or remedy under this Act or any other Act.
From the above, you can see that notwithstanding the standard terms that the shop is using to inform you that it will not refund you, the law provides for such a refund and you may sue the shop for this. The FCA has established a strong body under it, the Fair Competition Commission (FCC), and it is also worth reporting these sub standard products to them.
You must also note that any standard terms and conditions must be registered with the FCC. Section 36 of the FCA states that whenever the terms and conditions which are to govern any consumer transaction are to be included, whether wholly or in part, in a standard form contract the terms and conditions shall be registered with the Commission in accordance with the regulations, under this Act.
We have not seen such specific regulations but FCC can be contacted to find out if the shop has indeed registered its standard terms and conditions.
All in all, we don’t agree with your friend’s opinion, and opine that from our reading of the question you likely have a cause of action against the shopkeeper. Your lawyer can guide you further.