Buying Defective Goods (No. 257)
|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.
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.
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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