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Consumer sales act and who is responsible, problem with sewing machine!
stevensan
post Thu, 12 Jul 2018 - 18:48
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Hello all. Previously had great help with problems here, so here goes again!

We purchased a sewing machine around two years ago for Mrs Stevensan from a shop in Stirling, Scotland. After negociating the price we agreed to buy on debit card for £7000. It wasn't until the debit card was out that he said he needed to phone the manufacturer to take payment as they were just the "agent".

When we got the machine home it did not work because the auto needle threader was not functional, and it immediately went back to the shop to be repaired. The problem was the needle threader had not been lubricated when manufactured. Three months later there was another problem that stopped it stitching, and again it went back for repair. A month later a 3rd problem appeared when the welded catch on the stitch plate broke.

It then worked fine until two weeks before the end of the two year manufacturers warranty, when it stopped working completely (wouldn't turn on). It is now back at the manufacturer for repair (Again) and they are blaming a blown power supply, which they are saying is our problem, not theirs. It has been used on a surge protector plug, and not one other electronic in the house has ever been damaged.

I want to reject the sewing machine entirely under the consumer goods act (?) as it is simply not fit for purpose. The shop in Stirling is refusing to do anything, as they say my contract is with the manufacturer (VSM) and VSM are saying they only needed to repair it while under warranty after which it is my problem. I don't agree with their interpretation as the product is an expensive, premium sewing machine. It should not continually break down (4 times in 2 years) and an item like this should be expected to work for many years.

So questions are:

1) Is my interpretation correct, and I should be able to reject it, for a full refund, under the consumer goods act?
2) Is the shop liable, or do I have to chase the manufacturer only? (I do not have an address for the manufacturer, as everything has been via the shop, who are now denying any liability and directing me to talk to the manufacturer)
3) I am currently living in England - can I use moneyclaim online, or as the shop is in Scotland do I need to go through the Scottish system/Sheriff court?
4) At the moment everything has been verbal and we've essentially reached deadlock, with neither the shop or manufacturer willing to do anything. Is my next step a letter before action, and if so should I be offering mediation (and if so, what?)

thanks in advance!

stevensan
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post Thu, 12 Jul 2018 - 18:48
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paulajayne
post Thu, 12 Jul 2018 - 18:55
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Post this HERE

Far more expertise there.

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southpaw82
post Thu, 12 Jul 2018 - 19:15
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The first question is: Was the machine bought in the course of business?


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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stevensan
post Thu, 12 Jul 2018 - 19:28
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QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 19:15) *
The first question is: Was the machine bought in the course of business?


No. It was a consumer transaction, bought personally and never been used for any commercial purpose.
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southpaw82
post Thu, 12 Jul 2018 - 19:33
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The next question is which country’s law applies to the contract. The good thing is that the relevant parts of the Consumer Rights Act 2015 apply in Scotland as well as England.


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stevensan
post Thu, 12 Jul 2018 - 19:40
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QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 20:33) *
The next question is which country’s law applies to the contract. The good thing is that the relevant parts of the Consumer Rights Act 2015 apply in Scotland as well as England.


thanks. I was resident in Wales (and currently am) at the time of purchase, but bought from a Scottish based store. VSM (the manufacturer) is a Swedish company but I do not know whether they have a UK base/office. My thought is the Scottish based shop is the company responsible, but they are denying they are.

This post has been edited by stevensan: Thu, 12 Jul 2018 - 19:40
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PASTMYBEST
post Thu, 12 Jul 2018 - 19:44
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QUOTE (stevensan @ Thu, 12 Jul 2018 - 20:40) *
QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 20:33) *
The next question is which country’s law applies to the contract. The good thing is that the relevant parts of the Consumer Rights Act 2015 apply in Scotland as well as England.


thanks. I was resident in Wales (and currently am) at the time of purchase, but bought from a Scottish based store. VSM (the manufacturer) is a Swedish company but I do not know whether they have a UK base/office. My thought is the Scottish based shop is the company responsible, but they are denying they are.


who did you make the payment too
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southpaw82
post Thu, 12 Jul 2018 - 19:46
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QUOTE (stevensan @ Thu, 12 Jul 2018 - 20:40) *
QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 20:33) *
The next question is which country’s law applies to the contract. The good thing is that the relevant parts of the Consumer Rights Act 2015 apply in Scotland as well as England.


thanks. I was resident in Wales (and currently am) at the time of purchase, but bought from a Scottish based store. VSM (the manufacturer) is a Swedish company but I do not know whether they have a UK base/office. My thought is the Scottish based shop is the company responsible, but they are denying they are.

I don’t see why the Scottish store wouldn’t be liable but I’ve no idea about Scots law.


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stevensan
post Thu, 12 Jul 2018 - 19:51
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QUOTE (PASTMYBEST @ Thu, 12 Jul 2018 - 20:44) *
QUOTE (stevensan @ Thu, 12 Jul 2018 - 20:40) *
QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 20:33) *
The next question is which country’s law applies to the contract. The good thing is that the relevant parts of the Consumer Rights Act 2015 apply in Scotland as well as England.


thanks. I was resident in Wales (and currently am) at the time of purchase, but bought from a Scottish based store. VSM (the manufacturer) is a Swedish company but I do not know whether they have a UK base/office. My thought is the Scottish based shop is the company responsible, but they are denying they are.


who did you make the payment too


payment was made over the phone to VSM while inside the shop in Stirling (Where I walked out with the sewing machine). In answer to Southpaw the shop is denying they are liable as they never "sold" it to me (even though bought in their shop), and I have the general question of whether moneyclaim online can be used against a Scottish company.
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southpaw82
post Thu, 12 Jul 2018 - 19:55
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QUOTE (stevensan @ Thu, 12 Jul 2018 - 20:51) *
I have the general question of whether moneyclaim online can be used against a Scottish company.

No - PD7E, Para 4

QUOTE
A claim may be started using Money Claim Online if it meets all the following conditions –

(6) the defendant’s address for service is within England and Wales.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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stevensan
post Thu, 12 Jul 2018 - 19:58
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QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 20:55) *
QUOTE (stevensan @ Thu, 12 Jul 2018 - 20:51) *
I have the general question of whether moneyclaim online can be used against a Scottish company.

No - PD7E, Para 4

QUOTE
A claim may be started using Money Claim Online if it meets all the following conditions –

(6) the defendant’s address for service is within England and Wales.



ok. well that puts me at a disadvantage as then I assume I'd have to file it at a sheriff court and go to Scotland for any hearing. Would I have a claim against the shop, or do they get out of the claim because I paid the manufacturer directly?
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southpaw82
post Thu, 12 Jul 2018 - 20:06
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I don’t believe you’re confined to using MCOL. You could start a claim by another method. The real question will be which law applies, as it’s no good starting a county court action for a Scots contract.


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notmeatloaf
post Thu, 12 Jul 2018 - 20:42
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What company is recorded on your card statement? Have you asked your card provider for the details?

Shame you have missed the 540 days chargeback limit.
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southpaw82
post Thu, 12 Jul 2018 - 21:00
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Try the Consumer Ombudsman .


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cp8759
post Thu, 12 Jul 2018 - 21:06
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I believe it's likely Scottish law applies. Regulation 4 of The Law Applicable to Contractual Obligations (Scotland) Regulations 2009 provides that conflicts of law between "the laws of different parts of the United Kingdom" are to be dealt with (subject to certain limited exceptions) under the Rome I Regulation (Regulation 593/2008), which provides under Article 4, "a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;".

There is a consumer protection clause under Article 6 but it doesn't help if you buy something by walking into a shop:

"1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

(b) by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.
"

So unless the shop by any means "directed" its activities to England, the contract falls to be dealt with under Scottish law because that will be the habitual residence of the seller. Which to be honest makes a lot of sense, it would hardly be reasonable for a shop in London to be told they're subject to Scottish law because, unbeknown to them, an unhappy customer of theirs just happenes to live in Scotland.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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StuartBu
post Fri, 13 Jul 2018 - 01:56
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Scotland does have a Small Claims procedure- held in Sheriff Courts i believe.
As for such expensive items there is consumer law that is often quoted that says they should be expected to last 6 years ( 5 in Scotland I believe) and I used this some years ago when a TV I had blew the tube and the supplier paid me for a replacement less an amount for the use I'd had of it.
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stevensan
post Fri, 13 Jul 2018 - 07:22
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QUOTE (southpaw82 @ Thu, 12 Jul 2018 - 21:06) *
I don’t believe you’re confined to using MCOL. You could start a claim by another method. The real question will be which law applies, as it’s no good starting a county court action for a Scots contract.



QUOTE (cp8759 @ Thu, 12 Jul 2018 - 22:06) *
I believe it's likely Scottish law applies. Regulation 4 of The Law Applicable to Contractual Obligations (Scotland) Regulations 2009 provides that conflicts of law between "the laws of different parts of the United Kingdom" are to be dealt with (subject to certain limited exceptions) under the Rome I Regulation (Regulation 593/2008), which provides under Article 4, "a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;".

There is a consumer protection clause under Article 6 but it doesn't help if you buy something by walking into a shop:

"1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

(b) by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.
"

So unless the shop by any means "directed" its activities to England, the contract falls to be dealt with under Scottish law because that will be the habitual residence of the seller. Which to be honest makes a lot of sense, it would hardly be reasonable for a shop in London to be told they're subject to Scottish law because, unbeknown to them, an unhappy customer of theirs just happenes to live in Scotland.


Ok, lets break this down into digestible bits. Firstly who is my contract with? The manufacture VSM says its with them. I think the agent (the shop) is also liable as I agreed a verbal contract with them for price before paying. It was only on paying that they said they were the agent and I paid over the phone to the UK office of VSM in England with no sight of any info about VSM via debit card. Once I can identify who my claim is against I can then identify the country.
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The Rookie
post Fri, 13 Jul 2018 - 08:44
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My thoughts are as follows
1/ The shop is clearly an agent of VSM and clearly received some of the payments - whether that is enough to confer some liability I'm not clear on, but that is certainly possible.
2/ As the transaction was conducted in Scotland AIUI you can take legal action against VSM in Scotland
So the combined logic would be to name them as co-defendants if you go as far as action.

Who did the receipt come from? Who's name is on it?


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stevensan
post Fri, 13 Jul 2018 - 09:17
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Once the sale had gone through, I received a receipt from VSM with their address (in England) and company details on it. I had not seen these at the time of paying. The delivery address was the name and address of the shop.

Now, if you are right and I can go after both companies, it sounds like it would be better to do this via the English system as the Scottish system is limited to £3K via the small claims process whereas I can go after the full amount in the English system. That says I should only go after the manufacturer not the agent and stick to English law, but it would be good to tie in the shop as well and do it via English law. Will this be possible?
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The Rookie
post Fri, 13 Jul 2018 - 10:03
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If they are in different jurisdictions I don't see you can name them as co-defendant unfortunately. Maybe someone knows different.

This post has been edited by The Rookie: Fri, 13 Jul 2018 - 10:03


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