Buying Defective Goods
Script 257 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses what you can do if you’ve bought a product or items (called “goods”), which turn out to be defective.
When you buy goods, you are making a contract with the seller
Your rights as a buyer depend on the terms of the contract. Those terms can be either “express” or “implied”.
What is an “express” term?
An express term is one that you and the seller actually agree upon. It doesn’t matter if your agreement was verbal, or written, or a bit of both. If the seller doesn’t give you what was agreed, then you have certain rights to get what you agreed to or get your money back.
Guarantees and warranties are common types of express terms
Look carefully at them in your purchase contract. Often your rights under a guarantee or warranty depend on you following certain operating or cleaning instructions. For example, in the case of a car, your rights under the warranty might only apply if you get the car regularly serviced at an authorized dealer. And some goods are sold for certain purposes or uses only. Using the goods for uses not intended would void (or cancel) the warranty.
What is an “implied” term?
Purchase contracts can also have implied terms. Implied terms are those that the law includes in a contract between a buyer and seller in certain circumstances.
There are four implied terms when you buy new goods
In BC, the Sale of Goods Act says there are four implied terms, called “conditions,” that exist in particular contracts for the purchase and sale of new items. If the seller breaks the condition or doesn’t carry out a condition of the contract, then you (the buyer) have the right to reject the goods and cancel the contract. You’re entitled to get back the money you paid, plus compensation for any extra expenses caused by the defective goods.
The four implied terms are:
The goods must match the description or the sample.
The goods must be reasonably fit for your purpose for them.
The goods must be of merchantable quality.
The goods must last for a reasonable time.
First, the goods must match the description or sample
If you were shown a sample of the goods, there’s an implied condition that the goods will match their description or match the sample. An example of goods sold by sample is carpeting. If the carpet that ends up on your floor isn’t the same as the sample you saw in the showroom, you don’t have to accept it. Similarly, if the goods are sold by description, there’s an implied condition that the goods will match the description. Catalogue sales are a good example of a sale by description. If you ordered something from a catalogue, you have the right to send it back if it isn’t the same as the description.
Second, the goods must be reasonably fit for their purpose
There’s an implied condition that the goods will be reasonably fit for the buyer’s purpose. There are, however, two catches to this condition:
This condition only applies if it’s the seller’s business to sell things, and the goods are things he or she usually sells. So a private sale between two individuals isn’t covered, or if your hairdresser orders you a computer, that also isn’t covered.
Further, this condition only applies if you explained to the seller how you planned to use the goods and also explained that you were relying on his or her skill and judgment. For example, if you go to a hardware store and tell the saleswoman you want a saw to cut metal pipes, and she sells you a saw that only cuts light wood, you would have a case for saying that the saw isn’t reasonably fit for the purpose for which you bought it. But if you just picked up the saw yourself (thinking it should work for metal pipes) and took it home without any discussion, you wouldn’t have the right to cancel the contract, because you didn’t explain to the seller why you needed the saw. Also, if the seller gave you notice of the intended use (for example, a label says “this is a saw for cutting wood only”) and you used it differently, like metal cutting, then you couldn’t rely on this condition to get your money back.
The third condition is that the goods must be of merchantable quality
There’s an implied condition that the product won’t have any defects if you buy it by description from someone who sells that type of goods. So, it applies to catalogue sales and most mail order sales. But it wouldn’t apply if you bought something privately through the classified ads, for example. It also wouldn’t apply if you examined the goods first and had a chance to discover any defects before buying.
The fourth condition is that the goods will last for a reasonable period of time
Of course, this implied condition only applies if you use the product as intended. It won’t apply if the goods are put to some use for which they weren’t made. You can’t say that an ordinary vacuum cleaner designed for household dust hasn’t lasted for a reasonable time if it breaks down while using it to suck up heavy construction debris.
What should you do if you discover the goods you’ve bought are defective?
You should immediately return the goods to the seller. Request an exchange for replacement goods. If a replacement product isn’t available, ask for a refund. If the product isn’t suitable for its use, then you’ll only want a refund. Also, don’t continue to use the defective goods until you return them or after demanding a refund or exchange. If you continue to use the defective product, you could and probably will lose the right to return it.
What if trying to return the goods doesn’t work?
Then tell the seller in writing that you’re rejecting the goods. Act quickly. If after writing and attempting to return the goods, you’re still met with resistance in obtaining either a replacement or refund, insist on leaving the defective goods with the seller, and get a dated receipt indicating this. Then make your complaint to the store’s customer complaint department, and if you still don’t get any satisfaction, complain to the president of the company and tell the company in writing that you intend to sue.
In general, your best protection as a consumer is to be well informed
And if a seller makes promises or guarantees that you’re relying on, make sure those promises are in writing and that you understand them.
Where can you get help or more information?
You can call the Better Business Bureau. They may propose mediation or arbitration as informal ways to resolve your dispute. You and the seller must both agree to this. With mediation, a qualified third party mediator helps to facilitate a mutually acceptable resolution. With arbitration, an arbitrator hears both sides of the story and then makes a decision that is legally binding. The phone number for the Better Business Bureau for mainland BC is 604.682.2711 (websitewww.mbc.bbb.org) and 250.386.6348 for Vancouver Island (website www.vi.bbb.org).
You may also contact one of the various consumer agencies listed on Consumer Protection BC’s website at www.consumerprotectionbc.ca under its "How Can We Help?” page (under the “Help for Consumers” tab), or phone Consumer Protection BC at 1.888.564.9963 for guidance.
If the goods you’ve bought aren’t defective, but don’t live up to the glowing promises made by the seller, refer to Script 260 on “Dishonest Business Practices and Schemes.”
[updated February 2013]
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