If you purchase a second-hand item from a business or trader, the consumer rights that you are entitled to are extremely similar to those you have when buying an item that's brand new. Namely the goods should be:
These rights in the UK are defined in the Consumer Rights Act and cover any purchase from a trader made since October 2015.
If you discover a fault with an item, this act gives you the right to return it for a full refund within the first 30 day of purchase. After the first 30 days (but within the first 6 months) you can still return the item, but you must give the retailer the opportunity to replace or repair the fault.
After 6 months, to return the item you must prove that the fault was present when it was first purchased, which can be more difficult if a product was second hand or pre-owned from the outset.
Second hand products may have imperfections and faults that are attributed to normal wear and tear. In some cases, there may be quality issues with a product due to its age and how it has been previously used.
When considering your consumer rights, it's important to remember that second hand products do not have to be of the same quality as new items. Therefore, you cannot simply reject an item because it is not of the same standard as you would expect if it was brand new.
Fit for Purpose with second hand goods.
Fit for purpose means that the item must function correctly and last for a period of time that is 'reasonable'. In relation to used goods the item should function fully for the purpose it was designed and sold for. However, being a used item, it may show signs of being pre-owned and not last as long as you would expect a brand-new item to last.
Satisfactory Quality with second hand goods.
Satisfactory quality is basically a standard that a reasonable person would consider as acceptable taking into consideration the item's description, price and circumstances of the purchase. It is most often relating to a product's appearance, freedom from defect, durability and safety. Obviously, the quality of an item can be subjective, but expectations should generally be lower if you purchase an item that has been previously used.
As Described with second hand goods.
As described means that an item must be accurately advertised and described by the trader. If you asked questions about the product in store prior to purchasing, such as its warranty status, service history or how it currently operates, the information given should all be correct. Likewise, if the salesperson advises you of a fault with an item, then it is 'as described' and you can't reject it due to it having the fault.
Buying second hand goods online.
When buying second hand goods online, over the telephone, at home or through mail order from a retailer you will also benefit from additional protections. Namely the Consumer Contract Regulations, or to give it its full name The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
These regulations cover what was previously known as 'Distance Selling' and provides some extra rights, even when purchasing a used product. These rights include:
The retailer is entitled to expect that anything sent back is returned in the exact condition as it was received. This can sometimes be a point of dispute when returning second hand goods as they are likely to have not been in original packaging etc. in the first instance.
An important point to remember when buying second hand products online is that not every website purchase is classed as buying from a business. When you buy from sites such as eBay, Gumtree, Shpock or Amazon Marketplace you will need to check if the seller is a business or trader. As if they are a private individual, then consumer rights and contract protections will not apply to your purchase.
Consumer Rights and private sellers.
If you purchase items from a private seller via a web advertisement, local newspaper ad or car boot sale it is important to be aware that you don't have any consumer rights. For the Consumer Rights Act to apply you need to be an individual making a purchase from a business.
If you do buy a second-hand item from a private individual it only has to match any advertised description. This limited protection falls under The Misrepresentation Act for when an untrue fact or statement is made by the seller to convince a buyer to make a purchase.
A private seller isn't under any obligation to tell you about any faults or defects, and there's no requirement for the item to be of satisfactory quality or suitable for any specific purpose.
So, as you may have heard, purchasing from a private seller is a matter of 'buyer beware'. You should check the product thoroughly to ensure you are 100% happy before buying it.
Legal advice on second hand rights.
In the majority of cases once you make the retailer aware of the fault, they should deal with your concerns inline with your consumer rights. If they refuse, the next step is escalating the matter as a complaint and then involving any associated ombudsman which should be detailed in the retailer's terms and conditions.
If all these steps fail, your only available method of resolution may be to start court proceedings. If the value of your claim is less than £10,000, it will be treated as a 'small claim' which means there are set fees to issue the claim and only limited legal expenses are able to be added (see our guide on how much does it cost to take someone to court).
Therefore if the value of your consumer claim is significant, it will be worthwhile seeking legal advice on your dispute before beginning court action.
Non or late paying customers are unfortunately a fact of life for most small to medium businesses. While at best delayed payments can be annoying, at worst they will have a measurable and detrimental impact on the smooth running of your business.
Recent figures via the Official Statutory Register of Judgments has given an insight into the potential scale of the problems around business debts and disputes that have been escalated to the courts. The data shows that in the third quarter of 2018 there was a 32% increase in the number of County Court Judgments (CCJs) issued against businesses.
That's over 10,000 court judgments per month registered against businesses in England and Wales, with an average value of £3,072 each.
While there are fixed fee debt recovery services available to deal with most size B2B debts, needless to say it's more important than ever to make sure you have effective procedures in place for protecting cash flow in your business.
So, we wanted to share some of the proactive general advice that we've provided to our clients after helping them recover business debts owed to them.
Know your customer.
Make sure you know who you are doing business with. Be aware of the size of the organisation and whether they are a partnership, sole trader, limited company or PLC. Check if they use a trading name and if the person instructing you has the authority to do so on behalf of the business you will be ultimately be invoicing?
Limited company checks.
Make use of public services such as Companies House to verify your private limited company customers. When first considering doing business with them, verify their registered office, company number and trading status. Then throughout your relationship recheck periodically and be alert to warning signs such as overdue accounts, charges being registered against them or large drops in cash reserves which may indicate their business is struggling.
Whenever possible try to request payment in advance or at least a deposit. Invoice as soon as the order is completed or agree to do so at regular intervals if it's a lengthy job.
Don't hide your payment terms.
Include standard payment terms within your T&Cs and on your invoices, ensuring they are clear and reasonable. Make customers aware of these terms before they order, when you provide a quote and when an invoice is at risk of becoming overdue. Your invoice should also include details on how to pay you, such as your bank account or online payment information.
Get it in writing.
For large or regular transactions consider getting a contract drawn up and signed by both parties. At the very least ensure the main points of the order or transaction are in writing with evidence that it has been agreed by each party.
Documentation and a paper trail.
If you ever end up having to consider legal action, good record keeping will pay dividends. Everything from the original order, proof of delivery and late payment chases should be kept. Your solicitor will want written evidence and a chronology of events to proceed with a claim, so keep copies of any emails and notes of any telephone calls.
What to do when a client doesn't pay?
Implementing the above tips may help in reducing the chances and impact of late paying business customers. But even with the most vigilant owner, on-the-ball accounts team and strictest terms and conditions, you will still encounter customers that simply choose not to pay.
So your next step is to consider formal legal action to recover the amount owed, which usually starts with sending a Debt Recovery Letter Before Action.
Having robust Terms & Conditions, a consistent approach to invoicing, and a clear paper trail will help you get what's owed to you that much quicker and assist your legal claim should you ever need to get a solicitor involved.
In business many people struggle when asked to review a contract or agreement that has been presented to them. After all when finalising a deal or new business relationship, you are more likely to be focusing on the logistics and implementation of the deal than the wording of the contract.
However quickly glancing at a contract and just signing it to 'get the ball rolling' should be done at your peril.
Getting professional legal help with the document is your safest option, but if you're in the early stages of going through an agreement we wanted to share a few contract review tips on how to read a contract like a lawyer.
A contract is simply a written agreement between two or more parties to do (or not to do) a particular action. When correctly drafted and signed, a contract becomes a legally binding agreement that both parties must comply with.
The most important aspect of any contract is to precisely articulate the arrangement that has been agreed between the parties that is in line with current law and legislation.
The remainder of the contract should then document how any foreseeable scenarios will be dealt with for the duration of the agreement. Such as implementation, timings, payment, failures, disputes, termination etc.
The major terminology or wording used should be specifically defined, either in the body of the contract or in the case of a lengthy document in a dedicated 'Definitions' section. Disputes often arise if a term isn't clearly documented and is just left for each party to interpret. For example, common terms such as:
Identifying parties to a contract .
The individuals or businesses that are entering into the agreement should be clearly defined. If only the name of a business or individual is documented, it may be considered ambiguous should you ever need to enforce the contract.
In the case of a limited company make sure their registered office and company number is recorded which precisely identifies them, and with individuals detail their home address and date of birth.
Duration, termination and renewal.
The duration that an agreement covers or remains in force is an important clause to consider. While the parties may not want to be bound to an arrangement forever, they also may not want to be entering into a new contract every few months. Therefore, each party needs to consider what is a reasonable period for the contract to cover and how any extension or termination is dealt with.
Indemnity clause and limitation of liability.
Indemnity is when a party agrees to protect and compensate another party from losses that may occur in the event of a specific breach or negligence. For example, a retailer may seek indemnity from a manufacturer in the event the products supplied are defective and a claim is made against them by a consumer.
A limitation of liability clause is used to restrict the amount a party pays in the event another party suffers a loss due to the contract. Without this term, a party may be liable for an unlimited amount of damages and financial compensation.
Both these clauses require careful and clear drafting if they are to successfully manage the risks posed by a contract whilst not impacting a party's statutory rights.
Governing law, jurisdiction and dispute resolution clauses.
There's little point in carefully drafting a legal document without specifying the law and jurisdiction under which it falls.
You may think this is only important when dealing with international agreements, however this isn't the case. The UK alone has three legal jurisdictions (England and Wales, Scotland and Northern Ireland) each of which has their own distinct legislation.
A contract should clearly define which legal system it operates under and the court any dispute will be handled in. On the subject of disputes, court action should always be a last resort, so it is also worthwhile to consider dispute resolution options as part of the agreement.
A simple alternative dispute resolution clause that requires all parties must first undertake negotiation or mediation in an attempt to resolve an issue can save both time and money should a disagreement ever arise.
Legal document checking.
If you are presented with a contract prepared by another party or their solicitors, there really is no substitute for getting your own legal advice on its content.
Your own solicitor will be able to advise on the contract with your best interests in mind, tailoring a review to focus on the risks you would be exposed to and suggest amendments or additions which may be beneficial.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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