Using Sale of Goods Act As a Business?
Discussion
I work with a school that has had rising bollards installed to stop parents driving onto the premises to drop their kids off. The staff have key fobs which they wave at a sensor to lower the bollards, and there is an intercom system for deliveries etc.
A couple of months back we had heavy rainfall which caused the bollards to stop working. It is in a low lying area where the water table isn't too far below ground level. According to the installers the shaft that the bollards retract into has filled with water damaging the mechanism. The installers claim that they have installed them as per the manufacturers specifications, however the manufacturers dispute this and say it is the installers who have put them in wrong.
This back-and-forth blame game has been going on now for some time, and they still haven't been repaired, which has resulted in a few near misses with kids as parents continue to drive into the school when they've been told plenty of times not to.
Now, if it was a 'normal' consumer, under the Sale of Goods Act it would be the responsibility of the installer to sort it out, as that is who the contract was with. My question is basically, is this the case with a business or organisation (the school) too? Or does the SOGA only apply to normal consumers?
A couple of months back we had heavy rainfall which caused the bollards to stop working. It is in a low lying area where the water table isn't too far below ground level. According to the installers the shaft that the bollards retract into has filled with water damaging the mechanism. The installers claim that they have installed them as per the manufacturers specifications, however the manufacturers dispute this and say it is the installers who have put them in wrong.
This back-and-forth blame game has been going on now for some time, and they still haven't been repaired, which has resulted in a few near misses with kids as parents continue to drive into the school when they've been told plenty of times not to.
Now, if it was a 'normal' consumer, under the Sale of Goods Act it would be the responsibility of the installer to sort it out, as that is who the contract was with. My question is basically, is this the case with a business or organisation (the school) too? Or does the SOGA only apply to normal consumers?
Ignore those who say SOGA doesnt apply to businesse it applies to the sales of all goods to everyone!
I'm sure the more legally qualified will be along in the morning but from a procurement perspective;
- your contract is with the supplier so it is them to sort, if there is an issue with the manufacturer it is for your supplier to sort with them as there is no contract between you and the manufacturer.
- the issue may be with who specified them; if it was someone at the school who said somehing like ive seen these from there and think they'd be perfect and then the supplier installed them then you may have an issue. However if the school said to the supplier "we want bollards that to up and down" and they surveyed the site and made the recommendation then they may be liable.
The other issue is whether whoever specified them should have known about the high water table in the area and took them into account when they specified the bollards and i'm not sure how you'd resolve that one.
The bollards have to be fit for the purpose for which they were made and they must be made to a merchantable quality but these only apply if they are used within manufacturers specification.
If theyre not used within manufacturers spec then there's thei manufacturers get out to your supplier which is why who specified them to be installed is the critical question.
My comments are not based on being any legal expert just a purchasing person with an understanding, as you'd expect of contract law. I have had instances where people have been screaming that something doesnt work properly or has broken and demand that i rip the supplier apart to only find out that it was the engineer who said that they wanted the item specific item to be supplied and that's what was supplied.
I'm sure the more legally qualified will be along in the morning but from a procurement perspective;
- your contract is with the supplier so it is them to sort, if there is an issue with the manufacturer it is for your supplier to sort with them as there is no contract between you and the manufacturer.
- the issue may be with who specified them; if it was someone at the school who said somehing like ive seen these from there and think they'd be perfect and then the supplier installed them then you may have an issue. However if the school said to the supplier "we want bollards that to up and down" and they surveyed the site and made the recommendation then they may be liable.
The other issue is whether whoever specified them should have known about the high water table in the area and took them into account when they specified the bollards and i'm not sure how you'd resolve that one.
The bollards have to be fit for the purpose for which they were made and they must be made to a merchantable quality but these only apply if they are used within manufacturers specification.
If theyre not used within manufacturers spec then there's thei manufacturers get out to your supplier which is why who specified them to be installed is the critical question.
My comments are not based on being any legal expert just a purchasing person with an understanding, as you'd expect of contract law. I have had instances where people have been screaming that something doesnt work properly or has broken and demand that i rip the supplier apart to only find out that it was the engineer who said that they wanted the item specific item to be supplied and that's what was supplied.
Edited by Marcellus on Thursday 4th December 19:29
Did you purchase the product and have the installer only install them or did they supply and fit the bollards?
IF the latter, you contract is with them, they need to fix it. It is not your problem whether it is their fault or a manufacturing defect, your contract is for them to supply and fit operative bollards, and they are in breach.
IF the former, then you will need to argue with the manufacturer that the product was defective.
IF the latter, you contract is with them, they need to fix it. It is not your problem whether it is their fault or a manufacturing defect, your contract is for them to supply and fit operative bollards, and they are in breach.
IF the former, then you will need to argue with the manufacturer that the product was defective.
Jasandjules said:
Did you purchase the product and have the installer only install them or did they supply and fit the bollards?
IF the latter, you contract is with them, they need to fix it. It is not your problem whether it is their fault or a manufacturing defect, your contract is for them to supply and fit operative bollards, and they are in breach.
IF the former, then you will need to argue with the manufacturer that the product was defective.
Is it really as cut and dried as that?IF the latter, you contract is with them, they need to fix it. It is not your problem whether it is their fault or a manufacturing defect, your contract is for them to supply and fit operative bollards, and they are in breach.
IF the former, then you will need to argue with the manufacturer that the product was defective.
What if the customer said to the supplier "I want you to supply and fit abc rasing bollards in to my driveway" and then the supplier did just that.
Marcellus said:
Is it really as cut and dried as that?
What if the customer said to the supplier "I want you to supply and fit abc rasing bollards in to my driveway" and then the supplier did just that.
Well, very little is cut and dried when it comes to a legal position.What if the customer said to the supplier "I want you to supply and fit abc rasing bollards in to my driveway" and then the supplier did just that.
However, working on the basics of what we have...
It may be there are contractual terms and all sorts which will affect this but in simplistic terms yes if they contracted someone to supply and fit the bollards and they have already failed, then the OP needs to go to them to remedy the defect. It is not for the OP to act as a tennis umpire between the contractor and the manufacturer of the product they provided and installed.
Usually the simplest approach works best.
Sale of Goods Act 1979 applies to ALL sales - but the Unfair Contract Terms Act 1977 allows some of the main benefits/rights of the SOGA to be taken out of a contract between 2 NON consumers if they agree.
Therefore consumers buying from businesses will always benefit from certain rights but businesses buying from others businesses will usually have standard terms that exclude those rights.
There are 6 possible remedies under SOGA. I believe 2 of them apply to all contracts (rejection/damages) and 4 others only apply to consumers (repair/replacement/partial refund/full refund)
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In this particular case it appears you have bought goods and their installation which is a service - therefore the Supply of Goods and Services Act 1982 applies - this covers both the goods and the service (so SOGA can be ignored unless you directly bought the goods yourself).
Any service must be carried out with 'reasonable care and skill' - it sounds like it was potentially a bodged installation so you will need to consider whether the installers have installed it as a competent installer should have.
It doesn't sound like there is an actual defect with the goods per se - if there was then there are certain rights under the SGSA but these can again be excluded for businesses if agreed
http://www.legislation.gov.uk/ukpga/1977/50 - sections 6,7 11 and 12 are relevant.
Where a service has not been carried out with reasonable care and skill you can claim damages.
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Ignoring statute - you can rely on the terms of the contract which presumably includes providing goods which work properly.
Therefore consumers buying from businesses will always benefit from certain rights but businesses buying from others businesses will usually have standard terms that exclude those rights.
There are 6 possible remedies under SOGA. I believe 2 of them apply to all contracts (rejection/damages) and 4 others only apply to consumers (repair/replacement/partial refund/full refund)
--
In this particular case it appears you have bought goods and their installation which is a service - therefore the Supply of Goods and Services Act 1982 applies - this covers both the goods and the service (so SOGA can be ignored unless you directly bought the goods yourself).
Any service must be carried out with 'reasonable care and skill' - it sounds like it was potentially a bodged installation so you will need to consider whether the installers have installed it as a competent installer should have.
It doesn't sound like there is an actual defect with the goods per se - if there was then there are certain rights under the SGSA but these can again be excluded for businesses if agreed
http://www.legislation.gov.uk/ukpga/1977/50 - sections 6,7 11 and 12 are relevant.
Where a service has not been carried out with reasonable care and skill you can claim damages.
--
Ignoring statute - you can rely on the terms of the contract which presumably includes providing goods which work properly.
craigjm said:
SOGA does not apply to businesses. You need to look towards the Supply of Goods and Services Act
One million per cent wrong. Full marks for pub lawyering!Parts of the Sale of Goods Act 1979 apply to EVERY sale of goods in the UK. Some parts apply only to consumer purchases.
Which law that applies (to me anyway) is irrelevant, who ever you paid is who your contract is with.
What I would do - send them a recorded delivery letter stating that you are giving them 14 days in which to make progress towards fixing the problem ie giving you a date when they are going to be replaced/fixed and an outline of the works they are carrying out to remedy the failure (must be in writing).
Make it clear that if they don't commit to fixing them within these 14 days you will get someone else to do it at their expense.
I've no idea how this stands up legally but that's my common sense approach.
What I would do - send them a recorded delivery letter stating that you are giving them 14 days in which to make progress towards fixing the problem ie giving you a date when they are going to be replaced/fixed and an outline of the works they are carrying out to remedy the failure (must be in writing).
Make it clear that if they don't commit to fixing them within these 14 days you will get someone else to do it at their expense.
I've no idea how this stands up legally but that's my common sense approach.
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