Q: Is it ever reasonable for a retailer to insist on a repair to a minor defect which is reported on delivery?
A: It is a truth universally acknowledged that the issue of minor defects gives rise to major debate.
There are differences of opinion regarding what is deemed to be satisfactory quality in terms of the issue of minor defects, with the final decision often being made on a case-by-case basis.
This issue has been considered by the Law Commission* who considered that whilst defining minor defects can be problematic, consumers are concerned with the appearance and finish of their items and blemishes, etc, however minor do detract from the consumer’s expectation that goods will be delivered in a perfect condition and they should not have to accept a price reduction or a repair, but retain the right to reject if they are not:
In many cases consumers spend a great deal of time selecting goods specifically because of their appearance, and pay more for goods because of their appearance. It is appropriate, therefore, that dents, scratches and blemishes will often be breaches of the implied term as to quality. In these cases, a repair or replacement may not be possible or practical, and the consumer will not want a reduction in price because they have selected the goods for their appearance and paid for a specific appearance.
The legal position
The Consumer Rights Act 2015 states that “every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory”. This is considered through the eyes of the reasonable person, having regard to description, price and other circumstances. These “other relevant circumstances” cover a wide range of issues, such as safety and durability, fitness for purpose and appearance; goods are also required to be free from minor defects. This therefore leads to the question of what is a “minor defect”…?
This is perhaps even more important in light of the Consumer Rights Act 2015 short term right to reject remedy. Whilst a trader may want to insist on a repair to a minor defect, if goods do not conform to the contract because of a breach of one of the implied terms, the consumer can return them for a full refund as long as exercise this right within the prescribed time limit – 30 days.
Interpreting the law
Case Law - There has been some discussion of this issue in case law. In a Scottish decision (Lamarra v Capital Bank plc (2007) SC 95) the Sheriff held that a vehicle under a hire purchase agreement did have a number of defects on delivery, but was of satisfactory quality as these were easy to rectify, covered by the warranty and did not affect the durability, longevity or value of the vehicle. This was reversed on appeal because the faults existed at the time of delivery and it was not, therefore, free from minor defects. As an aside, the court held that the Sheriff's Court had been wrong to consider the existence of the warranty since this provided additional rights which should not reduce the level of consumer protection.
The BEIS CRA Goods Guidance comments that for a minor defect to mean that the goods are not of satisfactory quality, the goods must fall below the condition that a reasonable person would consider satisfactory. They provide the following example - a new radio should not have dents in it but a smudge on the plastic of the packaging is unlikely to be a quality issue.
We can see from the examples provided, that the bar is set relatively low and the nature of the goods will be key, along with the price. Indeed some judicial commentary confirms that in circumstances when a consumer orders a high priced quality product this may entitle him to a ‘perfect, or nearly so’ product, free from all minor defects (Hale LJ Clegg v Anderson).
We can see, therefore, that the issue is not free from debate and we appreciate the reasons for that debate. On the one hand a consumer when purchasing a big ticket item has the right to expect at least near perfection, in light of all of the information provided; whilst on the other hand, if a trader can fix the matter with relative ease, they will want to at least try to do so – especially where a manufacturer may suggest that some issues are to be expected and are not classified as defects, of any description.
Whether that is reasonable or not will depend on the nature of the issue and the price the consumer has paid which will ultimately be decided on a case by case basis.