Sale of Goods Act and mobile phones

24
Found 21st Aug 2015
I received a new Xperia Z3 Compact as an upgrade (on EE) on 28 April 2015. By mid July, it had developed a fault where the earphone jack did not recognise that earphones were inserted, making listening to music/radio impossible. I sent the phone off for a warranty repair to Sony, which I received back on 5 August. Less than 3 weeks later, the phone has developed the identical fault. The phone obviously has an inherent fault, and therefore I would argue that in terms of the Sale of Goods Act 1979 is not fit for purpose. EE are refusing to issue a replacement as I don't have it insured with them! They are instead insisting on another warranty repair. The last time I was without the phone for over two weeks while it was getting "fixed" and frankly I don't trust it any more. Are they obliged to replace the phone given that it's obvoulsy faulty?
Community Updates
24 Comments
I guess EE would argue they are providing you the network service, the phone is part not under their control and so its warranty lies with the maker.

I guess you could argue to Sony you feel it should be replaced not fixed. But probably as best you can get.
Original Poster
doncoop

I guess EE would argue they are providing you the network service, the … I guess EE would argue they are providing you the network service, the phone is part not under their control and so its warranty lies with the maker.I guess you could argue to Sony you feel it should be replaced not fixed. But probably as best you can get.


But EE are the seller in terms of the Act. I didn't buy the phone direct from Sony.
like i say im no expert so someone might give you better advice.

but they make no promises with regards to network coverage which is under their control, so they wont do it with a phone made by another company.

no network will offer you a replacement (its not just ee) while it is being fixed i think.

id say you need to be raising with sony. well, you might have more luck with them anyway
Original Poster
doncoop

like i say im no expert so someone might give you better advice. but they … like i say im no expert so someone might give you better advice. but they make no promises with regards to network coverage which is under their control, so they wont do it with a phone made by another company.no network will offer you a replacement (its not just ee) while it is being fixed i think.id say you need to be raising with sony. well, you might have more luck with them anyway


Thanks for your response but I don't believe that's the case. If you bought a Nike t-shirt from Sports Direct and it fell apart on the first wear, you wouldn't send it back to Nike to get stitched back up.

The Act provides:

(1)If section 48A above applies, the buyer may require the seller

(a)to repair the goods, or

(b)to replace the goods.

(2)If the buyer requires the seller to repair or replace the goods, the seller must—

(a)repair or, as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer;

(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).


My reading of that is that they are obliged to replace it if it is not fit for purpose. Just looking for confirmation that my reading is correct.
Your contract (airtime & handset) is with EE. You need to check the terms and conditions you have signed-up to.
EE will have an obligation to provide you with the services that you have agree to pay for and which it is contracted to supply. Let EE send the handset back to Sony if they wish and provide you with a replacement so that they are not in default of the contract agreement between you both. You have no contract with Sony only with EE. You don't own the phone - EE do.
im just going from past experience when going through cpw and voda (shudder).

my phone was sent off for repair, the best they offered me was a talk and text type phone to cover you being able to access their network.

that was it.

if they did not offer you a replacement last time then they did so knowing they didnt have to.

they will most likely have an internal procedure of how many times a phone is repaired before offering you cancellation rights or a replacement.

again, they have these set up at the bare minimum for them, why wouldnt they after all.

hope you get it sorted. but theyre a slippery catch to get
Original Poster
doncoop

im just going from past experience when going through cpw and voda … im just going from past experience when going through cpw and voda (shudder).my phone was sent off for repair, the best they offered me was a talk and text type phone to cover you being able to access their network.that was it.if they did not offer you a replacement last time then they did so knowing they didnt have to.they will most likely have an internal procedure of how many times a phone is repaired before offering you cancellation rights or a replacement.again, they have these set up at the bare minimum for them, why wouldnt they after all.hope you get it sorted. but theyre a slippery catch to get


Cheers. Mobile phone companies - it seems there's not a good 'un among them!
Have you paid any money for the phone or is it free as part of a contract?
Original Poster
stuarthanley

Have you paid any money for the phone or is it free as part of a contract?


It was included with the contract - I'm loathe to say "free" as the cost is obviously incorporated into the overall contract cost!
Thistleno1

It was included with the contract - I'm loathe to say "free" as the cost … It was included with the contract - I'm loathe to say "free" as the cost is obviously incorporated into the overall contract cost!


That's how they'd weasel out of it. The phone was "free" so you're actually paying for the service.
I don't know how they legally get away with it. If you buy a toaster from Tesco and it goes wrong, you return it to Tesco, not Morphy Richards but phone companies seem to be a law unto themselves.
Edited by: "SJHan" 21st Aug 2015
No, that's not so. The phone is NOT free. You have an agreement with EE that they provide you with a service and your contract is not an airtime (or SIM) only one. EE is obliged to provide you with the phone and airtime service as contracted.
mike916

No, that's not so. The phone is NOT free. You have an agreement with EE … No, that's not so. The phone is NOT free. You have an agreement with EE that they provide you with a service and your contract is not an airtime (or SIM) only one. EE is obliged to provide you with the phone and airtime service as contracted.



The problem you have is proving the phone is not fit for purpose and that the problem was simply not repaired properly by the Sony repair specialist. Many manufacturers will offer a refurbished phone if they repair something twice and the problem resurfaces - as was the case with an HTC, a Nexus and a Nokia I sent for repair - over a long period of phone buying. If EE aren't putting any obstacles in the way of a repair then I'd just let them deal with it - annoying as that may be.
Thistleno1

Thanks for your response but I don't believe that's the case. If you … Thanks for your response but I don't believe that's the case. If you bought a Nike t-shirt from Sports Direct and it fell apart on the first wear, you wouldn't send it back to Nike to get stitched back up.The Act provides:(1)If section 48A above applies, the buyer may require the seller—(a)to repair the goods, or(b)to replace the goods.(2)If the buyer requires the seller to repair or replace the goods, the seller must—(a)repair or, as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer;(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).My reading of that is that they are obliged to replace it if it is not fit for purpose. Just looking for confirmation that my reading is correct.



Read (a) To repair the goods which is what they have offered to do.

To get the not fit for purpose you would need an engineer's report which you would have to pay for stating that is the case

Edited by: "Peegy" 21st Aug 2015
There is a lot of miss information here. Under the act a item less then six months old that goes faulty is classed as being inherently faulty. As such you can argue that it is not fit for purpose. The act states that the purchaser should not be inconvenienced as a result of the fault. Although not stated specifically about what amounts to inconvenience it is generally accepted that you should give the company one attempt at a repair. Any repair should not take more then 28 days.

The sellers responsibility once it is accepted that the item is inherently faulty is a replacement (can be refurbished), a pro rata refund or a full refund.

Edited by: "Argoj" 22nd Aug 2015
Thistleno1

But EE are the seller in terms of the Act. I didn't buy the phone direct … But EE are the seller in terms of the Act. I didn't buy the phone direct from Sony.



Your contract is with ee. Don't let them give you any flannel about it being the manufacturers responsibility. Tell them in no uncertain terms you want a new phone or there will be trouble. Inside 6 months onus on them. Get tough and don't talk to less skilled em employees. Personally I'd go to a store, get a manager and let everyone know how you feel.
Original Poster
Peegy

Read (a) To repair the goods which is what they have offered to do.


But the way the Act is worded, it is the buyer's choice whether to accept a repair or a replacement - it is the buyer who may require the seller to act, not the seller who has to offer one or the other. I think Argoj and bargainchaser2015 have it right and will be standing my ground! Thanks everyone.
Thistleno1

But the way the Act is worded, it is the buyer's choice whether to accept … But the way the Act is worded, it is the buyer's choice whether to accept a repair or a replacement - it is the buyer who may require the seller to act, not the seller who has to offer one or the other. I think Argoj and bargainchaser2015 have it right and will be standing my ground! Thanks everyone.




I will be interested to see how far you get.
Original Poster
Peegy

I will be interested to see how far you get.


I've got a written complaint in - will keep this thread posted!
Original Poster
Update: EE will not accept that they are obliged to offer a replacement, only a further repair. I have pointed out that they have had the opportunity of a repair, which has failed within less than 2 weeks, and that it is not unreasonable to now expect a replacement. They will not budge on a further repair, and so I am awaiting written confirmation that this is their final position so I can refer the matter to the Ombudsman.
I don't think you will get anywhere.
I would accept the offer of second repair as final solution but also seek reimbursment for not being fully able to utilise the contract due to the faulty phone.
Also i would read upon what the ombudsman actually does and wants from both consumer and retailer as people dont understand their service at all and think they are just people with power to get what they want.
stuarthanley

Have you paid any money for the phone or is it free as part of a contract?



I would agree I think EE will claim the phone is given free, if they give you it for free you cannot claim that it is broken.
Original Poster
Further update - I referred the matter to CISAS for arbitration as EE refused to back down. Within a week, I got a message from EE directly offering to replace the phone. I now have the new, working phone safely in my hands!
Thistleno1

Further update - I referred the matter to CISAS for arbitration as EE … Further update - I referred the matter to CISAS for arbitration as EE refused to back down. Within a week, I got a message from EE directly offering to replace the phone. I now have the new, working phone safely in my hands!



Good to hear. Their scare mongering obviously didn't work. They know it would cost them more in costs to continue and threw their hat it at the last possible time.
Post a comment
Avatar
@
    Text

    Top Discussions

    Top Discussions

    Top Merchants