Discussion:
SOGA - second hand item
(too old to reply)
Fredxxx
2017-02-27 19:51:02 UTC
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While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?

Assuming that I have the original proof of purchase from the supplier,
can I go to the shop and claim a repair under SOGA?

What happens if this is AO who don't actually have a shop!
burfordTjustice
2017-02-27 20:50:43 UTC
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On Mon, 27 Feb 2017 19:51:02 +0000
Post by Fredxxx
While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?
Assuming that I have the original proof of purchase from the
supplier, can I go to the shop and claim a repair under SOGA?
What happens if this is AO who don't actually have a shop!
Go do it and report back the results, then all will know
for the next time you have that problem.
Ophelia
2017-02-27 21:34:03 UTC
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"Fredxxx" wrote in message news:o91vrj$fen$***@dont-email.me...

While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?

Assuming that I have the original proof of purchase from the supplier,
can I go to the shop and claim a repair under SOGA?

What happens if this is AO who don't actually have a shop!

====

We buy things via AO and although we haven't had any problems we would
contact their customer service dept .. they have an excellent reputation for
arranging repair or replacement as appropriate.
--
http://www.helpforheroes.org.uk
Peter Parry
2017-02-27 22:27:18 UTC
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Post by Fredxxx
While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?
The contract of sale is between you and the entity you paid. When you
say second hand who did you buy it from and who are you hoping to
claim from?
Fredxxx
2017-02-28 22:34:01 UTC
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Post by Peter Parry
Post by Fredxxx
While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?
The contract of sale is between you and the entity you paid. When you
say second hand who did you buy it from and who are you hoping to
claim from?
I see your point, but in this case the seller has explicitly included
the paperwork and has allowed me to contact AO on their behalf.

Are you suggesting buying anything through an agent or otherwise will
invalidate any claim under the SOGA?
Peter Parry
2017-02-28 22:58:49 UTC
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Post by Fredxxx
Post by Peter Parry
Post by Fredxxx
While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?
The contract of sale is between you and the entity you paid. When you
say second hand who did you buy it from and who are you hoping to
claim from?
I see your point, but in this case the seller has explicitly included
the paperwork and has allowed me to contact AO on their behalf.
Are you suggesting buying anything through an agent or otherwise will
invalidate any claim under the SOGA?
Unless the seller was an agent of AO then they cannot establish a
contractual relationship between you and AO and you have no claim
against AO. AO or the manufacturer may give a transferable warranty
but that is a separate matter.

If the seller was for example a private buyer who decided to sell the
goods to you for whatever reason then you neither gain nor retain any
consumer legislation rights the seller would have had against the
original seller when you purchase the item from them.
Fredxxx
2017-02-28 23:39:19 UTC
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Post by Peter Parry
Post by Fredxxx
Post by Peter Parry
Post by Fredxxx
While I am aware that many guarantees are only valid for the original
purchaser, what is the situation where a 3 months old fridge is
purchased and goes wrong soon after?
The contract of sale is between you and the entity you paid. When you
say second hand who did you buy it from and who are you hoping to
claim from?
I see your point, but in this case the seller has explicitly included
the paperwork and has allowed me to contact AO on their behalf.
Are you suggesting buying anything through an agent or otherwise will
invalidate any claim under the SOGA?
Unless the seller was an agent of AO then they cannot establish a
contractual relationship between you and AO and you have no claim
against AO. AO or the manufacturer may give a transferable warranty
but that is a separate matter.
If the seller was for example a private buyer who decided to sell the
goods to you for whatever reason then you neither gain nor retain any
consumer legislation rights the seller would have had against the
original seller when you purchase the item from them.
That's quite a claim. Can you back this up with statute or case law?

A seller, who is a private buyer, can simply allow the new owner to be
their agent.
d***@gmail.com
2017-03-01 09:02:30 UTC
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Post by Fredxxx
A seller, who is a private buyer, can simply allow the new owner to be
their agent.
If the new "owner" is merely the agent of the original owner, that means the "seller" is actually still the owner. Which doesn't correspond with the other facts.

It is possible for a seller to assign warranties to a buyer (if the warranty permits that), but AFAIK that doesn't apply to rights under SOGA against the retailer.

But all this is usually academic if you turn up at a retailer with the broken item and a receipt - they're unlikely to quiz you on whether you're the original customer.
Peter Parry
2017-03-01 10:46:32 UTC
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Post by Fredxxx
Post by Peter Parry
If the seller was for example a private buyer who decided to sell the
goods to you for whatever reason then you neither gain nor retain any
consumer legislation rights the seller would have had against the
original seller when you purchase the item from them.
That's quite a claim. Can you back this up with statute or case law?
It is the essence of a contract.

For sale of goods the protections in the Consumer Rights Act apply
only to a contract for a trader to supply goods to a consumer.
(Consumer Rights Act S3(1)). The act makes no provision for those
rights to exist outside of the contract or for them to be transferable
in any subsequent sale.

For a contract to be legally binding it must contain four essential
elements:

an offer.
an acceptance.
an intention to create a legal relationship.
a consideration (usually money).

For the original sale all these elements have been met. The seller
made an offer and the buyer accepted. They intended to create a
contractual (legal) relationship and the buyer paid money for the
goods. The contract is a business to consumer contract and protected
by consumer rights legislation.

Nothing in this agreement authorises the buyer to later and
unilaterally decide to act as "agent" to the original seller. They
became the owner of the goods, no more. Once the goods were delivered
and accepted the contract was completed. The initial buyer is now the
owner of the goods.

If that buyer later resells the item to another person that would
create a contract between those two. However, it would not and
cannot create a contract between the original seller and second
purchaser as none of the essentials for a contract between those
parties are present. There is no offer, the goods are not the
property of AO any more and they cannot sell them. There can be no
acceptance as there was no offer. There was no intention for AO to
create a contract between themselves and the second purchaser and no
consideration was given to AO as no offer was made or accepted.
Without a contract there is no relationship between the original
seller and subsequent purchaser. If the original buyer then sells
those goods to another person they cannot unilaterally include in the
contract the original seller who has no knowledge of or intention of
being involved in the subsequent transaction as a party to that second
contract. Moreover the second sale was a person to person (P2P)
contract and not covered by the Consumer Rights Act.
Post by Fredxxx
A seller, who is a private buyer, can simply allow the new owner to be
their agent.
Which may create a contract between the seller and new buyer but has
nothing to do with the initial contract.

If you buy an item from a private individual the contract is a
personal (person to person (P2P)) sale, not a business to consumer
sale and has little legislative protection. If the goods later become
faulty then in general you have no redress against the seller in a P2P
sale. You certainly have no redress against the original supplier of
the goods to the person from whom you bought them. You may have
warranty rights if the warranty provider has allowed any warranty to
be transferable.
GB
2017-03-01 11:46:59 UTC
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Is there a practical solution to this problem?

For example, can the original buyer accept the goods back in exchange
for a token payment, get AO to fix the goods under SOGA, then transfer
them back to the OP for the same token payment?
Peter Parry
2017-03-01 12:05:03 UTC
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Post by GB
Is there a practical solution to this problem?
First step would be to read the warranty terms, that could solve the
problem straight away if the warranty turns out to be portable.
Post by GB
For example, can the original buyer accept the goods back in exchange
for a token payment, get AO to fix the goods under SOGA, then transfer
them back to the OP for the same token payment?
It depends how you feel about fraud (the intentional
misrepresentation or concealment of an important fact upon which the
victim is meant to rely, and in fact does rely, to the harm of the
victim).

The person who sold the fridge could certainly pretend not to have
done so and try to arrange repair with AO as if they still owned the
item. However, unless they have some fairly close relationship with
the person they sold the goods to I can't see why anyone would want to
get involved in such a scheme.

Once the goods were sold by the original purchaser the Consumer Rights
against AO vanished irretrievably and no amount of selling and
reselling can bring them back.
GB
2017-03-01 12:42:19 UTC
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On 01/03/2017 12:05, Peter Parry wrote:

I didn't suggest fraud.
Post by Peter Parry
Once the goods were sold by the original purchaser the Consumer Rights
against AO vanished irretrievably and no amount of selling and
reselling can bring them back.
Is that specified in the SOGA?
Peter Parry
2017-03-01 13:39:33 UTC
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Post by GB
I didn't suggest fraud.
Post by Peter Parry
Once the goods were sold by the original purchaser the Consumer Rights
against AO vanished irretrievably and no amount of selling and
reselling can bring them back.
Is that specified in the SOGA?
The Consumer Rights Act (which absorbed the SOGA as far as consumer
contracts went) applies to business to consumer contracts. The
contract in this case was an agreement to buy and sell. Person A,
the original purchaser, bought a fridge from a company. They paid
money and the fridge was delivered. The contract was completed and
that ended that transaction and that contract. The Consumer Rights
Act grants rights within the contract (the implied terms) but does not
grant any rights outside of that. One implied term is that the goods
work. If they fail to do so the purchaser, as one party in the
contract, has a right of redress against the seller.

The rights exist between the parties in the contract, in this case the
seller, a business, and the buyer, a private individual.

If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.

Person A entered into another transaction, this time with person B to
sell them the fridge. This was an entirely separate contract to the
first between A and AO and was a person to person contract so the
Consumer Rights act did not apply. The SoGA did, but that now has no
specific consumer protection content.

AO had nothing to do with the second sale and were not part of it.
They have no contractual relationship with B. A cannot unilaterally
and without their knowledge or agreement bind them to any relationship
with B. Selling the goods back to the original owner A does not
re-establish the link with the original seller as that sale is an
entirely different contract in which AO had no part.
GB
2017-03-01 15:05:30 UTC
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Post by Peter Parry
Post by GB
I didn't suggest fraud.
Post by Peter Parry
Once the goods were sold by the original purchaser the Consumer Rights
against AO vanished irretrievably and no amount of selling and
reselling can bring them back.
Is that specified in the SOGA?
The Consumer Rights Act (which absorbed the SOGA as far as consumer
contracts went) applies to business to consumer contracts. The
contract in this case was an agreement to buy and sell. Person A,
the original purchaser, bought a fridge from a company. They paid
money and the fridge was delivered. The contract was completed and
that ended that transaction and that contract. The Consumer Rights
Act grants rights within the contract (the implied terms) but does not
grant any rights outside of that. One implied term is that the goods
work. If they fail to do so the purchaser, as one party in the
contract, has a right of redress against the seller.
The rights exist between the parties in the contract, in this case the
seller, a business, and the buyer, a private individual.
If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.
Except they may have a residual link, in the form of a moral obligation
to the new buyer.
Post by Peter Parry
Person A entered into another transaction, this time with person B to
sell them the fridge. This was an entirely separate contract to the
first between A and AO and was a person to person contract so the
Consumer Rights act did not apply. The SoGA did, but that now has no
specific consumer protection content.
AO had nothing to do with the second sale and were not part of it.
They have no contractual relationship with B. A cannot unilaterally
and without their knowledge or agreement bind them to any relationship
with B. Selling the goods back to the original owner A does not
re-establish the link with the original seller as that sale is an
entirely different contract in which AO had no part.
Peter Parry
2017-03-01 16:39:22 UTC
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Post by GB
Post by Peter Parry
If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.
Except they may have a residual link, in the form of a moral obligation
to the new buyer.
Once you get into moral as opposed to legal responsibilities then the
goalposts become very moveable. The intermediate seller may well be
prepared to take the thing back, call for a repair as if it had never
been sold and hand it back afterwards. I suspect most sellers without
close links with the final buyer wouldn't be prepared to do this and
it may in any event be impractical. Similarly giving AO the buyers
address as if it wars yours ("we moved last week") and saying it has
broken is treading a gray line between being helpful and fraud.
Tom G
2017-03-01 16:37:46 UTC
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Post by Peter Parry
If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.
You are saying that if I buy a family member a present that any
warranty/guarantee is void?
Peter Parry
2017-03-01 16:48:31 UTC
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Post by Tom G
Post by Peter Parry
If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.
You are saying that if I buy a family member a present that any
warranty/guarantee is void?
That depends upon the terms of the warranty. If it is not
transferable then the recipient of the gift does not benefit from the
warranty. Similarly if the gift becomes faulty they have no comeback
under the Consumer Protection Act as they were not the purchaser.
GB
2017-03-01 21:44:17 UTC
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Post by Peter Parry
Post by Tom G
Post by Peter Parry
If the buyer disposes of the goods, whether by sale, gift or throwing
them away they no longer have any residual link with the original
seller as they no longer possess the goods.
You are saying that if I buy a family member a present that any
warranty/guarantee is void?
That depends upon the terms of the warranty. If it is not
transferable then the recipient of the gift does not benefit from the
warranty. Similarly if the gift becomes faulty they have no comeback
under the Consumer Protection Act as they were not the purchaser.
So, really, I'd be wise not to say "Here is a gift", but "Here is an
item on indefinite loan"?
tim...
2017-03-01 16:09:38 UTC
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Post by Peter Parry
Post by GB
Is there a practical solution to this problem?
First step would be to read the warranty terms, that could solve the
problem straight away if the warranty turns out to be portable.
Post by GB
For example, can the original buyer accept the goods back in exchange
for a token payment, get AO to fix the goods under SOGA, then transfer
them back to the OP for the same token payment?
It depends how you feel about fraud
I don't see how you can equate this with fraud

for it be fraud you need to be obtaining something to which you are not
otherwise entitled

and I think that you will struggle to prove that the owner of a domestic
appliance that is only three months old, is not otherwise entitled for it to
be "working"

tim
Peter Parry
2017-03-01 16:56:18 UTC
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Post by tim...
Post by Peter Parry
Post by GB
Is there a practical solution to this problem?
First step would be to read the warranty terms, that could solve the
problem straight away if the warranty turns out to be portable.
Post by GB
For example, can the original buyer accept the goods back in exchange
for a token payment, get AO to fix the goods under SOGA, then transfer
them back to the OP for the same token payment?
It depends how you feel about fraud
I don't see how you can equate this with fraud
for it be fraud you need to be obtaining something to which you are not
otherwise entitled
The person who purchased the goods from the seller (who had bought
them from AO) is not entitled to anything from AO.
Post by tim...
and I think that you will struggle to prove that the owner of a domestic
appliance that is only three months old, is not otherwise entitled for it to
be "working"
1. Against AO they have no claim. They did not buy it from AO.

2. Against the private individual they did buy it from they have few
and weak rights. If the seller explicitly claimed it was in perfect
working order and it didn't work when plugged in they would have
redress. If it worked for several weeks before failing they would
have none. There are no implied terms about quality or durability in
person to person contracts.
Fredxxx
2017-03-01 23:18:40 UTC
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Post by Peter Parry
Post by Fredxxx
Post by Peter Parry
If the seller was for example a private buyer who decided to sell the
goods to you for whatever reason then you neither gain nor retain any
consumer legislation rights the seller would have had against the
original seller when you purchase the item from them.
That's quite a claim. Can you back this up with statute or case law?
It is the essence of a contract.
For sale of goods the protections in the Consumer Rights Act apply
only to a contract for a trader to supply goods to a consumer.
(Consumer Rights Act S3(1)). The act makes no provision for those
rights to exist outside of the contract or for them to be transferable
in any subsequent sale.
I take issue with that assertion.
Consumer Rights Act 2015

2 Key definitions
(3) “Consumer” means an individual acting for purposes that are
wholly or mainly outside that individual’s trade, business, craft or
profession.

It specifically excludes sales through auctions:
(5) For the purposes of Chapter 2, except to the extent mentioned in
subsection (6), a person is not a consumer in relation to a sales
contract if—
(a) the goods are second hand goods sold at public auction, and
(b) individuals have the opportunity of attending the sale in person

Therefore goods sold second hand by a customer to a third party is also
a consumer for the purposes of this act. You mention many times about
'contract' but the whole point of the Consumer Rights Act is to provide
the consumer with protection beyond contractual responsibility.
Peter Parry
2017-03-02 12:03:31 UTC
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Post by Fredxxx
Post by Peter Parry
For sale of goods the protections in the Consumer Rights Act apply
only to a contract for a trader to supply goods to a consumer.
(Consumer Rights Act S3(1)). The act makes no provision for those
rights to exist outside of the contract or for them to be transferable
in any subsequent sale.
I take issue with that assertion.
Consumer Rights Act 2015
2 Key definitions
(3) “Consumer” means an individual acting for purposes that are
wholly or mainly outside that individual’s trade, business, craft or
profession.
[snip]
Post by Fredxxx
Therefore goods sold second hand by a customer to a third party is also
a consumer for the purposes of this act.
The participants, in your previous paragraph would, as I think you are
saying, both be consumers. Any contract between them would however, be
a private person to person contract, not a consumer contract.

For a contract to be a consumer contract it _must_ have one party
acting as a trader and one as a consumer. This is clearly defined in
several places, in the case of sales of goods the appropriate section
is 3(1) - "This Chapter applies to a contract for a trader to supply
goods to a consumer.". Not for a trader to provide goods to another
trader or for a consumer to provide goods to another consumer but
specifically and only for a trader to provide goods to a consumer.

This isn't new, that definition of a consumer contract has existed for
many years in other legislation absorbed into the Consumer Rights act.
Post by Fredxxx
You mention many times about
'contract' but the whole point of the Consumer Rights Act is to provide
the consumer with protection beyond contractual responsibility.
That is not its purpose at all. What it does is to enshrine within any
consumer contract certain terms which cannot be removed by either
party to the contract. It takes the implied terms from the SoGA adds
a few more and made them an integral part of any consumer contract.
Trade sellers cannot opt out of those terms and they are part of each
contract.

Outside of a contract they simply don't exist.

The explanatory notes to the Act make this clear (Commentary Para 30)

"Part 1 is concerned with contracts between a trader and a
consumer under which a trader agrees to supply goods, digital
content or services (or any combination of these) to a consumer. It
does not matter whether the contract is written or oral or implied by
the conduct of the trader and consumer, or a combination of
these. This means that, for the Part to have effect, there
must be a contract and the contract must be for a trader
to supply goods, digital content or services to a consumer. "

So, if you buy a new fridge from AO this is a consumer contract
between AO, a business, and you, a consumer. Part of that contract are
the terms put in by the consumer credit act such as fitness for
purpose, durability, appearance and finish etc.

If you buy a new fridge from a private individual that is a private
sale between two individuals. The Consumer Protection Act does not
apply and none of the implied terms are incorporated by default in the
contract. The Sale of Goods Act, minus the implied terms now
incorporated in the Consumer Rights Act still applies.

If you buy a nearly new fridge from a private individual the same
applies. It is not a consumer contract.

If you buy a nearly new fridge from Fred's Fridge Supplies that is a
consumer contract between you a consumer and Fred's, a trader. If
Fred's goes out of business a week later you have no redress against
the company that supplied Fred's because you have no contract with
them.

Assume you are driving down the road one day and you see a fridge on
the side with a sign on it saying "Help yourself, brand new, wife
doesn't like colour". Inside is the receipt from a week previously
from AO. You take it home, plug it in and it works but a week later
it stops working. Do you think AO who have received not a penny from
you and have had no contract with you should provide you with a
replacement?

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