Failure to complete an order

[quelquod]

I believe I know where I stand with this but I'd like others' opinions please.

We bought a furniture item during a sale. No immediate stock of course and it was due for delivery in 6 weeks. Now 3 months later the shop claims that they can no longer obtain the item. We can purchase the same item at another store, and have it delivered from stock, but at the full price. The original shop wants to scrub the order and refund - this will cost us an extra 20% (plus an extra delivery charge as the other store is more distant). I've not been able to confirm whether the item is still being manufactured.

What are my rights (Note - Scottish law if different).

[chas49]

s51 of the Sale of Goods Act 1979 (as amended) states

51 Damages for non-delivery.E+W+S+N.I.
(1)Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery.
(2)The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.
(3)Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or (if no time was fixed) at the time of the refusal to deliver.
(4)This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).]

I do not believe that anything in s19 of CRA 2015 limits your rights under SoGA 1979 in this case.

Essentially, you have the right to a full refund (under CRA2015) and also damages where appropriate under s51(3) SoGA 1979. In the circumstances you describe, there is clearly an available market (as other suppliers can supply) so the damages would be the extra cost.

According to the info at https://www.legislation.gov.uk/ukpga/19 ... iew=extent that part of SoGA 1979 applies throughout the UK.

(IANAL)

[quelquod]

Thanks for looking that up for me . Confirms what I've told the original shop manager though as you'd anticipate he disagreed and wants to only return my deposit call it quits.

[gryffron]

SOGA has not applied since 1-Oct-2015.

Since that date the relevant statute is the Consumer Rights Act 2015. Which, whilst I can't see anywhere it states explicitly that damages will be awarded, does state
(11)Those other remedies include any of the following that is open to the consumer in the circumstances—
(a)claiming damages;
http://www.legislation.gov.uk/ukpga/201 ... 19/enacted

IMO. Their failure to deliver is unlikely to be cause for any more than a "full refund". Especially on a sale item, there's no likelihood they'd refund full (i.e. non sale) price.

Your best hope is to claim their failure to provide timely cancellation has caused you to incur additional costs. i.e. Stress the delay, not the cancellation. But I'm still not convinced you'd win more than a full refund.

Gryff
(Also NAL)

[chas49]

SOGA has not applied since 1-Oct-2015.

Gryff
(Also NAL)

SoGA1979 was amended by CRA2015. It states (as quoted above) that

51(4) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

s19 CRA2015 says (in part)

s28 Delivery of goods
(1) This section applies to any sales contract.
(2) Unless the trader and the consumer have agreed otherwise, the contract is to
be treated as including a term that the trader must deliver the goods to the
consumer.
(3) Unless there is an agreed time or period, the contract is to be treated as
including a term that the trader must deliver the goods—
(a) without undue delay, and
(b) in any event, not more than 30 days after the day on which the contract
is entered into.
(4) In this section—
(a) an “agreed” time or period means a time or period agreed by the trader
and the consumer for delivery of the goods;
(b) if there is an obligation to deliver the goods at the time the contract is
entered into, that time counts as the “agreed” time.
(5) Subsections (6) and (7) apply if the trader does not deliver the goods in
accordance with subsection (3) or at the agreed time or within the agreed
period.
(6) If the circumstances are that—
(a) the trader has refused to deliver the goods,
(b) delivery of the goods at the agreed time or within the agreed period is
essential taking into account all the relevant circumstances at the time
the contract was entered into, or
(c) the consumer told the trader before the contract was entered into that
delivery in accordance with subsection (3), or at the agreed time or
within the agreed period, was essential,
then the consumer may treat the contract as at an end.

...

(9) If the consumer treats the contract as at an end under subsection (6) or (8), the
trader must without undue delay reimburse all payments made under the
contract.

...

(13) This section does not prevent the consumer seeking other remedies where it is
open to the consumer to do so.


In my reading of this, subsection 13 above clearly allows the consumer to use the rights specified in SoGA - which is not repealed - just amended.

Only my personal interpretation though

[gryffron]

AIUI:
SOGA was not repealed, because it continues to apply (as amended) to contracts signed prior to 1-Oct-2015.
For any contract post that date, CRA replaces SOGA.

https://www.which.co.uk/consumer-rights ... rights-act
"The Consumer Rights Act 2015 became law on 1 October 2015, replacing three major pieces of consumer legislation - the Sale of Goods Act..."

(I assume we are talking about a more recent purchase?)

Gryff

[chas49]

AIUI:
SOGA was not repealed, because it continues to apply (as amended) to contracts signed prior to 1-Oct-2015.
For any contract post that date, CRA replaces SOGA.

https://www.which.co.uk/consumer-rights ... rights-act
"The Consumer Rights Act 2015 became law on 1 October 2015, replacing three major pieces of consumer legislation - the Sale of Goods Act..."

(I assume we are talking about a more recent purchase?)

Gryff

I think you're right (and wrong)

CRA replaced certain rights under SoGA for contracts entered into post implementation. However, it seems to me that it also left parts of SoGA rights intact even for post-2015 contracts, and I think s51 is one of those.

My view is supported (I think) by note 93 of the explanatory notes to CRA2015: (http://www.legislation.gov.uk/ukpga/201 ... sion/3/1/3)

93.Subsections (9) and (10) serve as a reminder that the statutory remedies set out in section 19 do not mean the consumer cannot pursue other remedies, as an alternative or addition to the statutory remedies but the consumer may not recover more than once for the same loss. For example, in some cases the consumer may exercise the short-term right to reject and receive a refund, and also claim damages for additional loss caused by the non-conformity of the goods. In other cases, a consumer may prefer to claim damages instead of pursuing one of the statutory remedies.

The right to additional damages where the price for goods in a readily available market are more expensive and the goods are not delivered is not overridden by the specific rights in CRA 2015.

In practical terms I think the OP could quote some of this and persuade the seller to cough up. Whether the legal argument is completely accurate, I'm not sure. My view is that it is. But as I said before, I'm not a lawyer. And in any case my advice is worth exactly what I've been paid for it!

[quelquod]

Thanks all. As it has turned out after a fairly friendly chat yesterday, the original shop has managed to 'find' the necessary item and it is to be delivered after next weekend. So all's well, no need to test the ambiguity of the statutes.