OT: Credit card dispute / optician follow-up

[Peter Parry]

Keen or not, while the option of repair is theirs to offer the right to chose it or instead to reject the goods is entirely the buyers.

[Bruce]

Indeed. And on that basis, I am far more inclined to trust the judgment of Trading Standards than of any barrack room lawyer(s) on here.

[Bruce]

Only if the buyer acts reasonably. There is an onus on all concerned to act reasonably, or more particularly, to avoid acting unreasonably.

The retailer has quite reasonably offered to put matters right by fitting the correct lenses. A rejection of a reasonable offer to put things right may not be seen as reasonable, particularly when the frames fitted with the correct lenses would fully satisfy the original order in every respect.

After all, we are only talking about the wrong lenses having been fitted to a pair of spectacle frames. The retailer wants to put in the right lenses thereby giving the customer 100% of what could reasonably be expected.

Why would it be reasonable to refuse that? On what possible basis would a rejection of that offer be considered reasonable?

I suggest, only as an angry and petulant response to a simple human error. Would a reasonable person (such as the man on the Clapham omnibus) consider such a response reasonable, or irrational? What would a court think? That the customer could not reasonably have allowed it to descend to such a level?

I think what this discussion has shown is that there can be a limitations to the statement "the customer is always right". There is an onus on a retailer to act reasonably, why not the customer too?

Is wounded pride and/or arrogance (on the part of either party) allowed to supplant reason?

As I have said, as the retailer I would have nipped this one in the bud and offered a full refund, however much I might have thought that right was on my side. But it is very interesting to see what happens when a retailer stands up for themselves. ;-)

[Peter Parry]

This is where you are fundamentally wrong. The right of rejection is not limited by any requirement to be "reasonable". If you still maintain differently could you point out where in statute or case law you think this requirement exists?

From "The Law Commission Consultation Paper No 188 (The Scottish Law Commission Discussion Paper No 139) Consumer remedies for faulty goods"

"In England and Wales, in non-consumer sales, the buyer must show that the defects in the goods are ?not so slight that rejection would be unreasonable?. In consumer sales, however, there is no such requirement. Any defect which constitutes a breach of the ?satisfactory quality? requirement allows the consumer to reject the goods,"

The authors of that paper were The Right Honourable Lord Justice Etherton Professor Elizabeth Cooke Mr David Hertzell Professor Jeremy Horder Kenneth Parker QC The Honourable Lord Drummond Young Professor George L Gretton Patrick Layden QC, TD Professor Joseph M Thomson Colin J Tyre QC

I suspect that between them they knew a bit about the subject.

Rejection can only occur if the goods do not conform to the contract. The seller is entitled to reject the rejection if they feel the sellers claim is without foundation and a court will decide who is right.

The matter is of course is completely irrelevant in this case as the supplier has admitted the goods did not conform to the contract.

They were not fitted with the correct lenses. Whether they _could_ be is neither here nor there. They were handed over as the goods supplied to meet the contract. They did not conform to the contract. They can be rejected.

Don't be silly. If you go to buy a new car and find when you attempt to start it at the garage that the engine falls out and the brakes don't work do you think you have no right to reject it but must pay for it because the garage says they can put the engine back and fix the brakes that afternoon?

The goods _as supplied_ were faulty. The buyer can reject them. It matters not one iota that something else could have been supplied that would have been satisfactory - it wasn't.

It may indeed be perfectly unreasonable, it is perfectly lawful. It may have been unreasonable for Clegg to reject a £250,000 yacht built to his specification rather than allow the supplier and manufacturer to shave a tonne off the keel to bring it into conformity but he did and was supported by the law in doing so.

They are supporting the customer but Trading Standards don't support individual _cases_. Which bit of "Contact Trading Standards again. They still think D&A are wrong" are you having trouble with?

[Peter Parry]

You keep saying this - where is the law, statute or case, to back you up? Where are examples of valid rejection of faulty goods being overturned in the courts because the rejection was "unreasonable" and the seller could have remedied the fault?

In non-business to business transactions it doesn't have to be seen as reasonable, it doesn't have to _be_ reasonable. Reasonableness simply doesn't come into it.

Only in non-consumer transactions is there a test of reasonableness

SOGA S15A "15A Modification of remedies for breach of condition in non-consumer cases (1) Where in the case of a contract of sale- ... (b) the breach is so slight that it would be unreasonable for him to reject them, "

No such caveat exists in consumer contracts. If one was supposed to exist why do you think it was specifically excluded from this section?

"Only"? The goods are completely useless for the purpose supplied!

That's the same as saying an aircraft was "only" missing its engines.

And the customer can decide whether to accept their offer or to reject the goods and have their money back. It is wholly the customers choice, not the sellers.

Perhaps because the customer has lost confidence in the retailer because of the way they were treated. However it doesn't matter in the slightest as the customer has the choice of allowing the seller an attempt at repair or having their money back. They do not need to justify which remedy they wish to pursue.

The court would think what the Sale of Goods Act states - that if the goods were faulty the customer can reject them and have their money back.

If you want to change the law speak to your MP. Until it does change the situation is perfectly clear.

[Bruce]

Thanks for your detailed reply. The discussion has got to the point where I feel the need to consult a lawyer - a real one - so I have asked my solicitor (who is also a personal friend of many years) to let me have his comments when he can.

I have a particular interest in this issue for two reasons; first as someone who offers a specialist service that can easily run into problems and second as someone who wears glasses with a particularly difficult prescription which requires exceptionally careful fitting of lenses to frames.

I have used many opticians over the years - most have been worse than the one used by the OP and few, if any have been better. I have had to take back glasses several times because they were not exactly right, but I have never sought to, or even considered, rejecting them and asking for a refund as a means of solving a problem. Indeed, it would appear to make the problem worse, as few opticians measure up to the (usually) high standards of the one the OP used, so the alternative(s) is/are unlikely to be any better.

I find it particularly difficult to accept your assertion that there is no onus on the customer to behave reasonably - this seems to contradict the fundamental basis of English Law. Perhaps the letter of a statute might appear to give someone an absolute right to reject, but in my opinion there is still a responsibility for them to behave reasonably.

If that isn't the case, then I will reluctantly - and sadly - have to defer to your view.

It is precisely to avoid this sort of petty, nasty, pedantic legal conflict that I, as a retailer, would have given a refund at an early stage. For a while, It was interesting to see where things might go if a refund was refused, but I'm at the point now where I am more sure than ever that a refund would be the right thing to do, if only to escape the unpleasantness of people who appear to use the letter of the law to avoid the responsibility of behaving according to the spirit of the law.

[Peter Parry]

There is no onus on the customer to do anything and it stems from the common law approach to contracts which assumes that when a contract goes wrong, it should be ended as soon as possible (hence a quick right to reject).

Of course this still leaves it open for buyer and seller to negotiate alternative solutions if the buyer (who is in the weakest position) wishes to. As you have rightly said this is usually a better solution and certainly a better solution where tweaking of the delivered item is concerned to get the right fit.

However, in this case a gross error was made and not picked up. While "getting used to" may be a normal part of buying new glasses if a customer was saying they were way out the least I would have expected would be for the optician to quickly and immediately check they did indeed match the prescription.

It is not unreasonable for the customer, having been sent packing with faulty (not just "bit off" within the margin of measurement error) glasses by an assistant who wouldn't listen to what she was saying, to have lost faith in their ability to do better.

It is exactly this scenario which rejection addresses. If the supplier fails to honour the contract the customer is given the choice of allowing them another go or of ending the contract immediately without having to explain why.

Usually rejection would be because they have lost faith in the supplier. A good supplier will (again as you point out) simply not get into a situation where a customer has to resort to rejection. Here D&A did not act as a good supplier. In their shoes I would have offered the customer an immediate refund or, if they were prepared to let me correct my error, a free replacement and some compensation such as a second pair of glasses or the choice of better frames along with an offer that if they didn't like the second attempt they would get their money back straight away.

The Sale of Goods Act, once a model of clarity and still copied and used in many jurisdictions throughout the world, is now cluttered with EU rules and contains an unsatisfactory overlap of domestic and EU remedies

EU law comes from Napoleonic civil law roots in which all actions not allowed by the State are forbidden. They tend to favour sellers and consider the state interest in commerce is more important than the rights of individuals (Companies are also generally better placed to bribe Eurocrats than individuals are).

The SOGA therefore has ended up with the twin remedies of rejection (unfettered by any need to be reasonable) from old UK common law and the "new" EU introduced civil law bits in Section 5 which favour a negotiated settlement with the seller getting, in practice, to make most of the choices.

If the EU gets its way your rights as a consumer will soon be somewhat restricted and much UK consumer law will be replaced by a weaker EU Directive. Amongst the things to go will be the right to reject goods if they are faulty. In the example I quoted of the brakes not working and the engine falling out of your new car you will indeed have to pay up and let the garage fix it.

It is precisely to avoid this sort of petty, nasty, pedantic legal

In this case the spirit and letter of the law are one and the same. The law was written quite explicitly to allow the buyer to examine goods for a short time and to reject them if they did not conform to the contract. In this case the seller has not only supplied faulty goods but has refused to honour their obligations in law. They will of course shortly cease to exist.

[R D S]

It would have been reasonable if they had been verified as correct. Sending someone to get used to a pair of specs which are wrong is inexcusable.

Anyway, not that it matters to this case, were you all aware that Dollond and Aitchison are about to disappear from the high street having been bought up by Boots?

[R D S]

For the record, so people might avoid being fobbed off in the future, there is no reason why when looking straight ahead in a pair of varies, one shouldn't see as well as is possible.

[Bruce]

Eh?

[Peter Parry]

They have merged with Boots and D&A name will shortly disappear.

[Dave Plowman (News)]

No they weren't when the fault was pointed out.

And rightly so. Everyone who is used to specs can tell if a new pair might just need getting used to. There are far too many sellers of things only out to make a fast buck and don't give a toss about the customer.

Many years ago I bought a car which turned out to have been 'clocked'. Meaning I paid some 1000 quid more for it than I should have had. I had absolute proof. Trading Standards weren't interested. Their attitude was they had bigger fish to fry. I took the garage to the small claims court and got a full settlement. They went out of business not long afterwards.

Absolutely. A full refund from D&A would end the matter instantly.

[Dave Plowman (News)]

You might be happy to deal again with someone you've had a heated dispute with - others may not be and are supported by the law in saying they just wish to end the deal and get their money back.

[Dave Plowman (News)]

So you're a lawyer now? And pray tell us what dealings you've had with Trading Standards to have such a good opinion of them?

[Dave Plowman (News)]

Perhaps you should have been more stern in your approach to them. Do you really think it ok that a complex lens can be ground to perfection, but then isn't fitted correctly in the frame?

[Arfa Daily]

The trick there though is 'straight ahead', and I think that is where new owners get confused with them. In order to be able to use them at all distances, a degree of head movement has to be learnt. I found that with my first ever pair, I adapted to this very quickly, and it soon became instinctive, but I can see how it might feel unnatural to some, such that they never get used to them, as my optician warned me was sometimes the case. I think that someone said that you were an optician, so I guess you must come across this with your own customers. How do you deal with it, if you get a person who can't adapt ? If you have advised them that varis is what they need, and they can't get used to them, does that make them 'not fit for purpose' in that particular individual's case ?

Arfa

[Bruce]

Yes, I recall that you seem to favour a confrontational approach to so many situations.

[Dave Plowman (News)]

I'd certainly not put up with an optician who couldn't fit lenses to a frame properly. But if you can, then fine.

[R D S]

Agreed, but if you can't see in front of you, don't take them home!

If they are first timers I keep their expectations low[1]. They are advised that there is a slight chance they might not get on with them. If that turns out to be the case I will either refund or replace with bifocals or two separate pairs. Obviously I would rather they persevere, but only when it has been demonstrated that clear vision is possible at distance and close up.

[1] When I used to work at Specsavers they were sold as 'just like bifocals but without the line', and hard coats 'stop your lenses from scratching'. Happy days.

[mike]

Thanks Peter (and everyone else who's replied). We'll try one more letter stressing Part 2 as we're not eager to go to court (despite what some people seem to think).

Will also offer them the opportunity to elaborate on their repeated, nebulous claim that "Trading law provides us with the opportunity to rectify any issues" by asking them to quote a statute or case law that exempts them from the Sale of Goods Act.