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”) that are defective.


==When you buy and receive goods, you are making a contract==
===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 BC law and the terms of the contract. A contract does not need to be in writing. It can be a verbal 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.  


==The terms of a contract can be express or implied==
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 agreed on—either verbally or in writing, or both. A term is binding only if you have a contract. If the seller doesn’t give you what you agreed on, then you have certain rights to get the goods you agreed on, or to get your money back.


*An implied term is one that the law says is part of a contract, even though you haven’t discussed it with the seller.
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.


==Express terms are best==
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.
To avoid misunderstandings and arguments, it’s best to have express terms, not implied terms. Implied terms are broad, and different people can interpret them to mean different things. Also, include in the contract what will happen if the seller doesn’t live up to the contract.


==Guarantees and warranties are common express terms==
===If the contract includes a warranty or guarantee===
Look carefully at guarantees and warranties in your purchase contract. Guarantees and warranties are often so vague, or buried in so many qualifications, that they may not be of any value to you. Often, you have to follow certain operating or cleaning instructions for a guarantee or warranty 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. And some goods are sold for certain purposes or uses only. Using the goods for other purposes will cancel the warranty. If the seller makes any promises or guarantees, get them in writing—before you sign the contract—and make sure you understand any limits on them.
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.


==Four implied terms when you buy new goods==
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.  
In BC, the ''[http://bclaws.ca/civix/document/id/complete/statreg/96410_01 Sale of Goods Act]'' (sections 17 to 19) requires four implied terms, called “conditions,” to be in some contracts for the purchase and sale of new items. The goods must:
#match the description or the sample.
#be reasonably fit for your purpose for them.
#be of merchantable quality.
#last for a reasonable time.


If the seller breaks the condition or doesn’t carry out a condition of the contract, then you (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.
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 [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”.


===1. The goods must match the description or sample===
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 the seller showed you 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 delivered to you isn’t the same as the sample 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 can send it back if it isn’t the same as the description.


===2. The goods must be reasonably fit for your purpose for them===
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 reasonably fit for the buyer’s purpose. But there are two catches to 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 a private sale between two people isn’t covered, or if your hairdresser orders you a computer, that also isn’t covered.  
===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.


:*Second, this condition applies only if you told the seller how you planned to use the goods and explained that you were relying on their skill and judgment. 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 light wood, the saw isn’t reasonably fit for the purpose you bought it for. 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, for cutting metal, then you couldn’t rely on this condition to get your money back.
There are two catches with this condition.


===3. The goods must be of merchantable quality===
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.
The product cannot 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 an online ad, for example. It also wouldn’t apply if you examined the goods first and had a chance to discover any defects before buying.  


===4. The goods must last for a reasonable time===
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.
This implied condition applies only if you use the product as intended. It doesn’t apply if you use the goods for something they weren’t made for. For example, you can’t say that an ordinary vacuum cleaner designed for household dust hasn’t lasted for a reasonable time if it breaks down as you use it for heavy construction debris.


==What can you do if the goods you bought are defective? ==
===The goods must be of merchantable quality===
Immediately return the goods to the seller. Ask the seller to replace the goods. If a replacement isn’t available, ask for a refund. If the product isn’t suitable for its use, then ask for a refund. Don’t keep using the defective product until you return it or after you demand a refund or exchange. If you keep using it, you could (and probably will) lose the right to return it.
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".


==What if you can’t return the goods?==
This condition does not apply if you examined the goods before buying, at least for any defects your examination ought to have revealed.
Tell the seller in writing that you’re rejecting and returning the goods. Act fast. If the seller won’t give you a replacement or refund, leave the defective goods with the seller, and get a dated receipt for them. Then make your complaint to the store’s customer complaint department. If you still don’t get any solution, complain to the president of the company and tell the company in writing that you will sue. To do that, you can see a lawyer for legal advice. Or you can sue on your own. If your claim is $25,000 or less, you can sue in [http://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters Small Claims Court]. [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Small-Claims-Court 165 to 169] have more on suing in Small Claims Court. For more than $25,000, you have to sue in [http://www.courts.gov.bc.ca/supreme_court/ BC Supreme Court]. You should get legal advice before doing that.


==Research your purchase==
This condition does not apply in a private sale.
Your best protection as a consumer is to be well informed. If a seller makes promises or guarantees that you’re relying on, get those promises and guarantees in writing and make sure you understand them.


==More information==
===The goods must be reasonably durable===
*Contact the Better Business Bureau. They may suggest mediation or arbitration as informal ways to resolve your dispute. You and the seller must both agree to this. With mediation, a third-party mediator helps both sides reach a solution. With arbitration, an arbitrator hears both sides of the story and then makes a decision that is legally binding. The phone number for the [http://www.bbb.org/mbc Better Business Bureau] for mainland BC is 604.682.2711. The [http://www.bbb.org/vancouver-island/ Vancouver Island Better Business Bureau] is at 250.386.6348.
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.  


*Check with [http://www.consumerprotectionbc.ca/ Consumer Protection BC]. It has a list of [http://www.consumerprotectionbc.ca/consumers-other-businesses-home/resources-a-links resources and links for consumers]. You can also phone Consumer Protection BC at 1.888.564.9963 for help.  
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.


*If the goods you bought aren’t defective, but they don’t live up to the glowing promises made by the seller, check Script [[Dishonest Business Practices and Schemes (Script 260)|260]] on “Dishonest Business Practices and Schemes”.
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


[updated April 2015]
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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