Difference between revisions of "Problem with a Purchase"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.peopleslawschool.ca/lawyer/mona-muker Mona Muker], Maple Law Group, and [https://www.dlg-law.ca/team/dean-p-davison/ Dean Davison], Davison Law Group|date= October 2017}} {{Dial-A-Law TOC|expanded = consumer}}
We’ve all been there. You purchase a product, take it home, try it out, and it doesn’t work. Fortunately, the law offers protections if you buy '''goods that are defective'''.


{{Dial-A-Law TOC|expanded = credit}}
==Understand your legal rights==
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==
===When you buy goods, you are making a contract===
Your rights as a buyer depend on the terms of the contract. Those terms can be either “express” or “implied”.
Your contract is with the person or company who provides the goods. (If a person is an employee of a company, your contract is with the company only.) Your rights and obligations depend on the terms of the contract and who you bought from.  


==What is an “express” term?==
A contract does not need to be in writing. It can be a verbal agreement.
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==
The terms of a contract can be express or implied. An '''express term''' is one you and the seller agreed on — either verbally or in writing, or both.
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?==
An '''implied term''' is one the law says is part of a contract, even though you and the seller haven’t discussed it or agreed to it.
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==
===If the contract includes a warranty or guarantee===
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.  
Look carefully at any '''warranty''' or a '''guarantee''' in the sale contract. A warranty or a guarantee is a promise about the quality of goods sold and what will be done if there are problems.


The four implied terms are:
Warranties and guarantees are often so vague, or buried in so many qualifications, that they may not be of any value to you. Often, you must follow certain operating or cleaning instructions for a warranty or guarantee to be valid. For example, if you buy a car, the warranty may require you to get the car regularly serviced at an authorized dealer.  
*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==
Some goods are sold for certain purposes or uses only. Using the goods for other purposes can cancel the warranty. 
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.
===The law implies a legal warranty when you buy goods===
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-410/latest/rsbc-1996-c-410.html#sec17_smooth law in BC], a level of quality, performance and durability is implied into every contract for the sale of goods. The goods must be:
*reasonably fit for the purpose you bought them for,
*of “merchantable” quality (the item has to work),
*durable for a reasonable period of time, and
*“as described”.


==Second, the goods must be reasonably fit for their purpose==
These conditions are sometimes referred to as the “'''legal warranty'''“. This legal warranty applies regardless of whether the seller mentions it. It is in addition to any warranty the seller or manufacturer provide.  
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.
If any of these conditions are not met, you (as the buyer) can reject or return the goods and cancel the contract. You are entitled to get back the money you paid, plus payment for any extra expenses the defective goods caused.
*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==
===The goods must be fit for your purpose for them===
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.
An item you buy must be “'''reasonably fit for the purpose'''” you bought it for. This means it must function the way it’s supposed to function. For example, a bicycle is “fit for the purpose” if it is functional as a bicycle and can be operated in safety.


==The fourth condition is that the goods will last for a reasonable period of time==
There are two catches with this condition.
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?==
First, this condition applies only if it’s the seller’s '''business to sell things''', and the goods are things they usually sell. So this condition doesn’t apply in a private sale between two people.
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?==
Second, this condition may only apply where you tell the seller '''how you plan to use the goods'''. For example, if you go to a hardware store and tell the salesperson you want a saw to cut metal pipes, and they sell you a saw that cuts only wood, the condition clearly applies. The saw isn’t reasonably fit for the purpose you bought it for, and you clearly explained that purpose to the salesperson. But if you just picked up the saw yourself, without any discussion with the salesperson, you would likely not be able to rely on this condition.
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==
===The goods must be of merchantable quality===
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.
An item you buy is of “'''merchantable quality'''” if it can be reasonably used and is not damaged or broken. In other words, it has to work. This is protection against a product that is substantially defective, or a "lemon".


==Where can you get help or more information?==
This condition does not apply if you examined the goods before buying, at least for any defects your examination ought to have revealed.
*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 [http://www.mbc.bbb.org www.mbc.bbb.org]) and 250.386.6348 for Vancouver Island (website [http://www.vi.bbb.org www.vi.bbb.org]).
*You may also contact one of the various consumer agencies listed on Consumer Protection BC’s website at [http://www.consumerprotectionbc.ca 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 [[Dishonest Business Practices and Schemes (Script 260)|260]] on “Dishonest Business Practices and Schemes”.


This condition does not apply in a private sale. 


[updated February 2013]
===The goods must be reasonably durable===
An item you buy must '''last a reasonable period of time'''. The length of time considered “reasonable” will vary depending on factors such as the type of product, the price paid, the use the product would normally be put to, and the circumstances of the sale.


This condition doesn’t apply if you use the item for a purpose it wasn’t made for. For example, if you use an ordinary vacuum cleaner to clean up heavy construction debris, and the vacuum breaks down, the condition of reasonable durability doesn’t apply.


----
This condition applies whether you buy from a business or from a private seller. 
----


===The goods must match the description or sample===
An item you buy must '''match any description''' or sample provided. The item must reflect: 
*the seller’s advertising
*a description of the item in a contract, catalogue or website
*any statements or representations made by the seller verbally or in writing at the time of the sale


For example, if the seller showed you a sample of some carpeting, the carpeting you get must match the sample. If the carpet delivered to you isn’t the same as the sample in the showroom, you don’t have to accept it.
Catalogue sales are a good example of a sale by description. If you ordered something from a catalogue, you can send it back if it doesn’t meet the description.
==Common questions==
===What can I do if an item I bought is defective?===
Immediately return the defective item to the seller. Ask the seller to replace it. If a replacement isn’t available, ask for a refund. If the item isn’t suitable for its use, then ask for a refund. Don’t keep using the defective item. If you keep using it, you could (and probably will) lose the right to return it.
===What if I can’t return the item?===
Tell the seller in writing that you’re rejecting the defective item. Act fast. If the seller won’t give you a replacement or refund, leave the defective item with the seller, and get a dated receipt for them. Then make your complaint to the seller’s customer complaint department. If you still don’t get a solution, make a written complaint to a person in authority, such as a manager. 
===When should I consider suing?===
You can consider suing for defective goods if you can’t get a refund. If your claim is for $5,000 or less, you can go to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. If your claim is between $5,000 and $35,000, you can sue in [http://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters Small Claims Court]. See our information on suing in [[Suing Someone in Small Claims Court (No. 166)|Small Claims Court]] (no. [[Suing Someone in Small Claims Court (No. 166)|166]] to [[Going to Trial in Small Claims Court (No. 168)|168]]).
To sue for more than $35,000, you must go to [http://www.courts.gov.bc.ca/supreme_court/ BC Supreme Court]. There are fast track options in BC Supreme Court: a summary trial or “fast track litigation”. It’s wise to get legal advice before suing in Supreme Court, as the rules are more complex and the process is more expensive.
===The house I bought is unlivable. Is there a legal remedy?===
The law implies a warranty that a building bought to live in will be '''habitable'''. That means it will be free of “latent defects”, built in a good and workmanlike manner, built with suitable materials, and fit to live in. Examples of defects that would make a building hard to live in and breach the warranty include a plumbing problem that floods a house, or a roof that leaks and causes water damage.
This warranty applies only to buildings that were not complete when bought. It does not last indefinitely. Courts have suggested it will apply for at least a couple of years after the building is completed. The buyer and seller can contract out of this implied warranty, but they must be clear and specific to do that. A broad exclusion clause is not good enough.
If there’s a breach of this warranty, the buyer is entitled to get back any money they paid to repair defects and make the home habitable.
==Get help==
===Agencies that can help===
The '''Better Business Bureau''' assists people in finding businesses they can trust.
:Web: [http://www.bbb.org/ca/bc bbb.org/ca/bc]
'''Consumer Protection BC''' provides assistance relating to certain types of consumer problems and contracts in BC.
:Toll-free: 1-888-564-9963
:Web: [http://www.consumerprotectionbc.ca/ consumerprotectionbc.ca]
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Revision as of 17:46, 25 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Mona Muker, Maple Law Group, and Dean Davison, Davison Law Group in October 2017.

We’ve all been there. You purchase a product, take it home, try it out, and it doesn’t work. Fortunately, the law offers protections if you buy goods that are defective.

Understand your legal rights

When you buy goods, you are making a contract

Your contract is with the person or company who provides the goods. (If a person is an employee of a company, your contract is with the company only.) Your rights and obligations depend on the terms of the contract and who you bought from.

A contract does not need to be in writing. It can be a verbal agreement.

The terms of a contract can be express or implied. An express term is one you and the seller agreed on — either verbally or in writing, or both.

An implied term is one the law says is part of a contract, even though you and the seller haven’t discussed it or agreed to it.

If the contract includes a warranty or guarantee

Look carefully at any warranty or a guarantee in the sale contract. A warranty or a guarantee is a promise about the quality of goods sold and what will be done if there are problems.

Warranties and guarantees are often so vague, or buried in so many qualifications, that they may not be of any value to you. Often, you must follow certain operating or cleaning instructions for a warranty or guarantee to be valid. For example, if you buy a car, the warranty may require you to get the car regularly serviced at an authorized dealer.

Some goods are sold for certain purposes or uses only. Using the goods for other purposes can cancel the warranty.

The law implies a legal warranty when you buy goods

Under the law in BC, a level of quality, performance and durability is implied into every contract for the sale of goods. The goods must be:

  • reasonably fit for the purpose you bought them for,
  • of “merchantable” quality (the item has to work),
  • durable for a reasonable period of time, and
  • “as described”.

These conditions are sometimes referred to as the “legal warranty“. This legal warranty applies regardless of whether the seller mentions it. It is in addition to any warranty the seller or manufacturer provide.

If any of these conditions are not met, you (as the buyer) can reject or return the goods and cancel the contract. You are entitled to get back the money you paid, plus payment for any extra expenses the defective goods caused.

The goods must be fit for your purpose for them

An item you buy must be “reasonably fit for the purpose” you bought it for. This means it must function the way it’s supposed to function. For example, a bicycle is “fit for the purpose” if it is functional as a bicycle and can be operated in safety.

There are two catches with this condition.

First, this condition applies only if it’s the seller’s business to sell things, and the goods are things they usually sell. So this condition doesn’t apply in a private sale between two people.

Second, this condition may only apply where you tell the seller how you plan to use the goods. For example, if you go to a hardware store and tell the salesperson you want a saw to cut metal pipes, and they sell you a saw that cuts only wood, the condition clearly applies. The saw isn’t reasonably fit for the purpose you bought it for, and you clearly explained that purpose to the salesperson. But if you just picked up the saw yourself, without any discussion with the salesperson, you would likely not be able to rely on this condition.

The goods must be of merchantable quality

An item you buy is of “merchantable quality” if it can be reasonably used and is not damaged or broken. In other words, it has to work. This is protection against a product that is substantially defective, or a "lemon".

This condition does not apply if you examined the goods before buying, at least for any defects your examination ought to have revealed.

This condition does not apply in a private sale.

The goods must be reasonably durable

An item you buy must last a reasonable period of time. The length of time considered “reasonable” will vary depending on factors such as the type of product, the price paid, the use the product would normally be put to, and the circumstances of the sale.

This condition doesn’t apply if you use the item for a purpose it wasn’t made for. For example, if you use an ordinary vacuum cleaner to clean up heavy construction debris, and the vacuum breaks down, the condition of reasonable durability doesn’t apply.

This condition applies whether you buy from a business or from a private seller.

The goods must match the description or sample

An item you buy must match any description or sample provided. The item must reflect:

  • the seller’s advertising
  • a description of the item in a contract, catalogue or website
  • any statements or representations made by the seller verbally or in writing at the time of the sale

For example, if the seller showed you a sample of some carpeting, the carpeting you get must match the sample. If the carpet delivered to you isn’t the same as the sample in the showroom, you don’t have to accept it.

Catalogue sales are a good example of a sale by description. If you ordered something from a catalogue, you can send it back if it doesn’t meet the description.

Common questions

What can I do if an item I bought is defective?

Immediately return the defective item to the seller. Ask the seller to replace it. If a replacement isn’t available, ask for a refund. If the item isn’t suitable for its use, then ask for a refund. Don’t keep using the defective item. If you keep using it, you could (and probably will) lose the right to return it.

What if I can’t return the item?

Tell the seller in writing that you’re rejecting the defective item. Act fast. If the seller won’t give you a replacement or refund, leave the defective item with the seller, and get a dated receipt for them. Then make your complaint to the seller’s customer complaint department. If you still don’t get a solution, make a written complaint to a person in authority, such as a manager.

When should I consider suing?

You can consider suing for defective goods if you can’t get a refund. If your claim is for $5,000 or less, you can go to the Civil Resolution Tribunal. If your claim is between $5,000 and $35,000, you can sue in Small Claims Court. See our information on suing in Small Claims Court (no. 166 to 168).

To sue for more than $35,000, you must go to BC Supreme Court. There are fast track options in BC Supreme Court: a summary trial or “fast track litigation”. It’s wise to get legal advice before suing in Supreme Court, as the rules are more complex and the process is more expensive.

The house I bought is unlivable. Is there a legal remedy?

The law implies a warranty that a building bought to live in will be habitable. That means it will be free of “latent defects”, built in a good and workmanlike manner, built with suitable materials, and fit to live in. Examples of defects that would make a building hard to live in and breach the warranty include a plumbing problem that floods a house, or a roof that leaks and causes water damage.

This warranty applies only to buildings that were not complete when bought. It does not last indefinitely. Courts have suggested it will apply for at least a couple of years after the building is completed. The buyer and seller can contract out of this implied warranty, but they must be clear and specific to do that. A broad exclusion clause is not good enough.

If there’s a breach of this warranty, the buyer is entitled to get back any money they paid to repair defects and make the home habitable.

Get help

Agencies that can help

The Better Business Bureau assists people in finding businesses they can trust.

Web: bbb.org/ca/bc

Consumer Protection BC provides assistance relating to certain types of consumer problems and contracts in BC.

Toll-free: 1-888-564-9963
Web: consumerprotectionbc.ca
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