Problem with a Purchase

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 (website www.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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An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

An agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement."

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one guardian "will have the children on Monday, Tuesday, and Friday" but didn’t say anything about the other guardian, the agreement would be constructed to mean that the other guardian would have the children on the days that weren't mentioned.

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

A dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award that resolves the dispute and is binding on the parties. The arbitration of family law disputes is governed by rules set out in Part 2, Division 4 of the Family Law Act. See "alternative dispute resolution" and "family law arbitrator."

A person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."