The Consumer Protection Act and buying defective products: you have rights too!

When you’ve bought a defective product, it is comforting to know that in terms of the Consumer Protection Act (CPA) you as the consumer are not without remedy. But to investigate your options, you must understand what the CPA provides for.

Take the following scenario as example. Andy recently bought an electrical appliance from a retail store. The floor salesperson told him that the product would be compatible with his new iPhone. Excited, Andy rushed home – only to find that the appliance was not compatible with his iPhone. Reluctant to make a scene and still able to partially use the appliance, Andy continued using the item, only to find a few days later that the appliance had completely ‘died’ and would no longer switch back on. Infuriated at both the salesperson who had convinced him to buy the product and the retailer for selling a product that broke so quickly, Andy rushes back to the store to the return the product.

At the store, Andy is directed to the exchange counter. After explaining the situation to the assistant, Andy is shown the exchange notice board stating that the store’s return policy is that defective products must be returned within fourteen days of date of purchase for an exchange or refund and since his till slip shows the item having been bought fifteen days ago, the store cannot refund him his purchase price or replace the item and that he should rather directly contact the producer to find out about a refund or replacement. Additionally, the assistant informs Andy that it was his responsibility to verify the compatibility of the product with his iPhone beforehand, and that the store also cannot be liable for the lack of compatibility.

Many consumers find themselves in situations like that of Andy. So now the question is what the CPA provides for when it comes to defective products and the appropriateness of the product for the use for which it was bought.

The CPA determines that a ‘defect’ can be “any material imperfection in the manufacture of the goods or components, that renders the goods less acceptable than persons generally would be reasonably entitled to expect in the circumstances, or any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances.”

The CPA further states that every consumer has the right to receive goods that:

  • are reasonably suitable for the purposes for which they are generally intended;
  • are of good quality, in good working order and free of any defects (however, one should bear in mind that where a consumer is specifically informed that goods are offered in a certain condition and accepts the goods in that condition, the consumer cannot after the fact claim that the goods were defective. In Andy’s case however, he would be able to claim that the goods were defective irrespective of whether he could have established their defect at the date of purchase);
  • will be useable and durable for a reasonable period of time, with regards to the use to which they would normally be put;  and
  • comply with any applicable standards as set out under the Standards Act or any other public regulation.

In determining whether goods have satisfied the requirements of safe, good quality goods, one has to consider all of the circumstances relating to the supply of those goods, which, include the following:

  • the manner in which, and the purpose for which, the goods were marketed, packaged and displayed; the use of any trade description or mark; any instructions for, or warnings with respect to the use of the goods;
  • the range of things that might reasonably be anticipated to be done with or in relation to the goods; and
  • the time when the goods were produced and supplied.

Accordingly, it is irrelevant whether a product failure or defect was latent (hidden) or patent (visible), or whether it could have been detected by a consumer before taking delivery of the item.

Regarding the claim of the assistant that the iPhone compatibility issue was not the store’s problem, the CPA provides answers by providing that if a consumer has specifically informed the store of the particular purpose for which he wishes to acquire the goods and the store (through its sale staff) acts in a manner consistent with knowing about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that he has indicated to the sales staff. As the store salesperson assured Andy that he was knowledgeable and that the product was compatible with his iPhone, the store can be held responsible for compatibility issues related to the product.

Lastly, the question remains whether the exchange counter disclaimer prohibiting exchanges or refunds after fourteen days would protect the store against refunding or exchanging Andy’s defective product.

Here the CPA again comes to the rescue by determining that in any transaction for the supply of goods (such as Andy’s sale transaction) there is an implied warranty that the goods will meet the standards as set out above, provided the consumer has not altered or tampered with or used the goods contrary to the instructions. Where goods do not meet these standards, the consumer may return the goods to the store, without any penalty, within six months of delivery of the goods, and the store must repair or replace the defective goods, or refund the consumer for the full price paid for the goods.

The store will thus not be able to use their fourteen day period to avoid responsibility to exchange or refund Andy for the product purchased and Andy can request his money back or exchange the product for a working item.

How good to know that the CPA protects the consumer against the overzealous salesperson promising the world, and the store trying to pass the responsibility for defective products back to the consumer.

August 24, 2014
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