Mr Sissokos Rights as a Consumer - Case Study Example

 Mr. Sissoko’s rights as a consumer are somewhat unclear in this situation, as there are a number of variables involved. Generally it is believed that “risk passes when property passes” (Taylor and Naidoo, 2002), but this can change if there is contrary intention by the seller. In this situation, it must first of all be decided where the strips were damaged, as this will help determine who is at fault for their replacement. Since the risk passes whenever the properly changes hands, the delivery company is at risk for this damage if it occurred after the time of conformity. This means that in this particular situation, Mr. Sissoko will have to go after the delivery company in order to have his new strips replaces, which is a timely and costly venture for him. The reason why the law is like this is that “the decision as to whether a broad or narrow approach would be adopted, could be dictated by the degree of flexibility perceived in the meaning of s. 20. However this may be over-simplifying the task of the courts who may be concerned about the potential impact of the broad approach on the scope and function of default rules in general” (Taylor and Naidoo, 2002). Any time good are purchased by an individual, he or she will expect to have certain rights when the product is delivered. This means that they believe that the product will be delivered in a timely and efficient manner, without any damage being done to the product. This is generally taken to mean that the consumer is protected under section 14 of the SoGA, as this section makes the seller completely liable for any damage that is done before the product arrives at the consumer’s door. In these situations, the consumer will rely on the seller to get the product to him or her, without any problem. Since the seller is thought to be the business professional in these situations and, therefore, should be more knowledgeable than the consumer. Since the seller has more knowledge in these situations, the customer is automatically at a disadvantage when it comes to the legal side of this procedure, which is exactly what happened to Mr. Sissoko. The customer would not wish to take any responsibility for a product being damaged while in transit and consumer laws are in place to ensure that this does not happen. Where the problem lies is when a third-party delivery company takes on the job of delivering a product to a consumer. In these cases, the seller’s obligation to the customer is completely satisfied once the product is in the hands on the third-party carrier. When good arrives damaged, in these situations, the seller will very often not take responsibility for it, since it is believed that the seller’s obligation ended as soon as the delivery company took possession of the product. The consumer’s first priority to attempt to discover where exactly the damage took place. This is not always an easy thing to tell because there is no way to prove this either way. If the consumer cannot prove where the damage took place, he or she will have a very difficult time attempting to get reimbursed for his or her damaged purchase. The only action that a consumer can take in these situations is to attempt to determine where the damage took place. In this situation, since Mr. Benitez is refusing to take responsibly for the damage, Mr. Sissoko must go after the carrier in order to receive reimbursement for his damages. The problem with this is that unless it can be proved that the damage was done on purpose, the carrier is not responsible for it. If the seller was to deliver the product via his or her own company, then the company would be responsible, since it would be obvious where the damage came from. When a third-party carrier is used, however, there is no way that the carrier can be blamed for certain, as there is no real way to tell where the damage occurred. If it is proved that there was indeed negligence that led to the damage, then it becomes a much more serious case, but the source of the damage must still be proved. Since “ it is apparent that in different jurisdictions consumer protection laws afford different levels of protection to the consumer. The level of consumer protection is a matter of balancing irreconcilable interests. Suppliers would like to trade without any restrictions and maximise their profits whereas consumers want to be protected against unfair terms, abuse of their inexperience” (Schu, 1996). Both the seller and the courier will attempt to get out of paying for damages for this product, which they would definitely have to do if the damage was due to negligence. The proceedings that take place in these situations are quite costly, however, as the consumer must take legal action against both the seller and the delivery company, which means that many times, it is the consumer that loses the money. The only way to get around these problems is to make the time that the seller is completely free of liability when the product actually reaches the customer, which is difficult because “at present there is no similar framework that covers all situations when you purchase goods on the Internet. Although the Government has promoted e-commerce aggressively, focusing especially on the delivery of services, legal controls for the online sale of goods have yet to catch up with those for conventional shopping“ (Mobbs, 2002). What this means is that many of these laws are open to interpretation still, as the statutes are still being implemented, due to the infancy of this industry. As far as the footballs go, it is an entirely different situation. These footballs were misrepresented in the photograph that the company provided and, therefore, the company breached its contract with the consumer. The customer then has a 7-day cooling off period where he or she can decide whether or not he or she wishes to keep the product. This begins “when performance starts, if by that time the supplier has provided the written/durable information and the consumer has agreed to the service starting before the cancellation period would otherwise expire; seven working days after the day after the consumer receives the written/durable information, if the consumer has agreed to the service starting before the cancellation period would otherwise expire and the supplier provides the durable information in good time during performance of the service; when performance is completed, if the consumer has agreed to the service starting before the cancellation period would otherwise expire and the supplier provides the written/durable information in good time during performance of the service and performance is completed within seven clear working days of the consumer having received the written/durable information” (Guidance for Businesses, 2000). The difference between the two situations is the damage that is present. While in theory, misrepresentation should be a more serious offence than some damage being done, it is not in this situation. If the customer is simply not satisfied, he or she can just return the goods for a refund with no questions asked. In the case of the strips, however, the product left the business in satisfactory shape and, therefore, they are not responsible for it. Despite this, the consumer does have certain rights under these laws: (1) Where goods are sold or otherwise supplied to a consumer which are offered with a consumer guarantee, the consumer guarantee takes effect at the time the goods are delivered as a contractual obligation owed by the guarantor under the conditions set out in the guarantee statement and the associated advertising. (2) The guarantor shall ensure that the guarantee sets out in plain intelligible language the contents of the guarantee and the essential particulars necessary for making claims under the guarantee, notably the duration and territorial scope of the guarantee as well as the name and address of the guarantor. (3) On request by the consumer to a person to whom paragraph 4 applies, the guarantee shall within a reasonable time be made available in writing or in another durable medium available and accessible to him. (4) This paragraph applies to the guarantor and any other person who offers to consumers the goods which are the subject of the guarantee for sale or supply. (5) Where consumer goods are offered with a consumer guarantee, and where those goods are offered within the territory of the United Kingdom, then the guarantor shall ensure that the consumer guarantee is written in English. (6) If the guarantor fails to comply with the provisions of paragraphs (2) or (5) above, or a person to whom paragraph (4) applies fails to comply with paragraph (3) then the enforcement authority may apply for an injunction or (in Scotland) an order of specific implement against that person requiring him to comply. (7) The court on application under this Regulation may grant an injunction or (in Scotland) an order of specific implement on such terms as it thinks fit. (Crown Copyright, 2002) Since this product does not appear to contain a guarantee, then the standard rules apply. The main problem in this situation is that the third-party carrier does not have any affiliation with Scouse Kit and, therefore, there will be a major fight regarding what can possibly happen here. The final option that Mr. Sissoko has is to see if his contract with the seller falls under the category of Unfair Terms. It is written that “a contract may be considered unbalanced if it contains a term making consumers carry risks that the supplier is better able to bear. A risk lies more appropriately with the supplier if it is within his control, or he can insure against it more cheaply than the consumer, and especially if it is a risk of which the consumer cannot be expected to be aware“ (Taylor and Naidoo, 2002). It would appear, on the surface, that the seller would be better suited to take on the cost of replacing the strips than the consumer would be but at the same time, the seller would once again argue that the third-party delivery service should be at fault. The reason why this is in place is to help the customer avoid being placed at a disadvantage, which is what would be present if the customer was forced to undertake the cost of replacing his own product. This, however, would only happen if “operation of the default rule in s 20 is regarded as a functional equivalent to a term“ (Taylor and Naidoo, 2002). Therefore, if the default rule is deemed to be unfair to the consumer, then this clause can be invoked. What this clause does is, if it is successful, prevent the seller from invoking S. 20, which says that risk passes with possession. What is still unclear, however, is how this affects the delivery company. What is certain in this situation is that Mr. Sissoko should not be responsible for replacing the products that were damaged during shipment to him. He was not in possession of these products and even if the risk is passed onto him once the product leaves the consumer, he could make the plea of unfairness and pass the risk back to the seller. Therefore, the battle for liability should be between the seller and the carrier and Mr. Sissoko should not have to pursue his money, as it should be up to Mr. Benitez to recover this for him, as it would be unfair for this to be the responsibility of Mr. Sissoko. Mr. Sissoko has the right to have his product replaced at the expense of either Mr. Benitez or the third-party carrier and he should invoke the Unfair Terms clause in order to accomplish this. Works Cited Crown Copyright. 2002. "The Sale and Supply of Goods to Consumers Regulations 2002". Retrieved 21 March 2007. http://www.opsi.gov.uk/si/si2002/20023045.htm Guidance For Business. 2000. "Changes to the Consumer Protection (Distance Selling) Regulations 2000". Retrieved 21 March 2007. http://www.dti.gov.uk/files/file29193.pdf?pubpdfdload=05%2F2136 Mobbs, Paul. 2002. "E-Consumer Protection". UK Internet Rights. Retrieved 21 March 2007. http://www.internetrights.org.uk/index.shtml?AA_SL_Session=8fa795873994ed10dd54938b98227a99&x=586 Taylor, Martin Morgan and Naidoo, Andre. 2002. "The Draft Regulations to Adopt the Directive on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees- Problems of the Time of Conformity for the Quality Obligation". Web Journal of Current Legal Issues. Retrieved 21 March 2007. http://webjcli.ncl.ac.uk/2002/issue3/taylor3.html Schu, Reinhard. June 1996. "Consumer Protection and Private International Law in Internet Contracts". Retrieved 21 March 2007. http://ruessmann.jura.uni-sb.de/rw20/people/rschu/public/essay.htm Read More