The Consumer Rights Act 2015 (CRA) introduced a number of changes to the law relating to sales to consumers (it does not affect non-consumer sales). I have written elsewhere about the new remedies available to consumers, read more. However, in this article, I want to focus on a new obligation imposed upon traders.
Goods must Match the Model Examined by the Customer
The CRA has made a number of changes to several areas of the law of sale of goods to consumers, none more so than the obligation on traders to ensure that the goods delivered must match the model seen or examined by the customer.
At first glance, this does not seem problematic, but it is easy to envisage how problems can arise when it comes to larger more expensive goods made up of a number of parts and options, such as motor vehicles, machinery or, even, say, a kitchen. Those issues, and how to avoid them, are debated below.
Sale by Sample
Under the Sale of Goods Act, it remains the case (in non-consumer sales) that (i) where goods are sold by reference to a sample, the goods that are ultimately received match that sample and (ii) the goods will be free from any defect, making their quality unsatisfactory, which would not be apparent on a reasonable examination of the sample. This obligation is repeated in the CRA.
Sale by Reference to a Model
However, the CRA has introduced an additional obligation, namely:
Where goods are supplied by reference to a model seen or examined by a consumer, the goods must match the model, unless the differences are brought to the consumer’s attention before they enter into the contract.
In many respects, this shouldn’t cause any great difficulties for traders and consumers alike. For example, if I purchase a TV based on a selection i made on the shop floor and the salesman brings out a different version from the warehouse, then I'm entitled to the return to the shop and insist that I am supplied with the correct version.
However, it is easy to foresee difficulties if traders are not careful. For example, and looking at it from an automotive perspective (although this is applicable whatever your business if you are selling goods):
- A car on the forecourt is made up of a number of options and features. Therefore, if the consumer says, with reference to the car he has just test driven or seen on the forecourt/ showroom "I would like that one", then it is vital that the salesman knows what options have been included on that car, failing which, the consumer may well be entitled to call for the replacement featuring the options that were in place on the car test driven or on the forecourt.
- One issue that the CRA doesn’t deal with is where the consumer chooses a vehicle by reference to what they have seen on the forecourt, but, whether by accident or otherwise, a different model altogether (with a reduced specification) is ordered and a lower price paid. The question would then arise whether the consumer is entitled to the higher spec, higher priced model as that is what he had test driven. We await the court’s guidance on this, but our instinct is that the trader may be able to resist the consumer’s claim on the basis that they got what they contracted for. However, we would recommend you take our advice immediately if this situation occurs as the position is far from clear cut.
- It is easy to foresee a situation where a consumer believes that the vehicle he test drove, or saw on the forecourt, had certain options included on it, when that wasn’t in actual fact the case. Therefore, it is not hard to envisage a situation whereby, the consumer makes what he/ she believes is a legitimate complaint at the time of delivery that they have not got what they wanted. It is imperative therefore that traders keep records of (a) the precise spec of the vehicles that were on the forecourt at any one time and (b) details of the car that each customer test drives to defray this situation and show the consumer how they are mistaken.
- A further problem may arise where model lines are tweaked. That is, a customer orders a new car from the forecourt, but in the period between order and manufacture, the interior spec of that model line is changed. In these circumstances, it is imperative that any changes that the trader know will be made are notified to the consumer before they sign the contract. Where they don’t have that knowledge, then the position is likely to become more complicated, and, again, if a consumer makes such a complaint, we would recommend you seek our advice immediately.
- Accordingly, it is vital that manufacturers keep their dealers up to date with forthcoming changes, and that salesman notify customers of those changes (or the consumer is otherwise made aware of those changes).
In light of the changes, we would recommend:
- Traders ensure they keep records of what vehicles are on their forecourt at any one time.
- If a customer test drives a vehicle, a record is kept of the vehicle that was test driven.
- Traders keep up to date with forthcoming changes to any model lines they are stocking.
- Manufacturers should notify traders of any changes to model lines as soon as they reasonably can.
- Traders regularly train staff on the CRA, and, in this instance, the need to tell customers of any differences between the model seen and the model they will get.
- The appropriate notices are put in place, where applicable.
As ever, if you need to discuss any of the issues covered in this article, or any CRA related matter, do please contact the writer, Tom Maple, on 0118 951 6309 or firstname.lastname@example.org.
Tom Maple, August 2016
This represents a mere snapshot of the law as at August 2016. It is for information only and is not intended to be, nor does it amount to, legal advice and therefore should not be relied upon as such.