Consumer rights - Business v Business

[Woody3]

Wasn't sure if to post this in here or in the business section, so mods please move if you think otherwise...

We (business) bought some brand new equipment about 18months ago via an installer.

Since day one we've had nothing but issues with the said piece of equipment, to the point where it is now dangerous to use - We've now had enough, as someone could have been seriously injured/possibly killed (if it was a child) on Monday due to this!

We've been in contact with the installer over the past 18 months regarding the issues and he's tried to resolve the issues with the manufacturer, but the manufacturer keeps fobbing him off and refuses to do anything about it.

What steps can we take to get the issues resolved? Can I make contact with the manufacturer instead of going through the installer? Are there any legal routes I can go down?

We're now starting to lose money due to not being able to use the equipment.

Help!

[CYMR0]

No idea. What does your contract say?

(And is it even fixable?)

[Oldandslow]

Is the manufacturer in the UK? Is the machine bespoke or are there more like it operating in the UK? How are you handling the "serious incident" from a health and safety reporting stance. Remember you have a duty of care to employees and others. This machine should be locked out if in a known dangerous condition. Write a fact finding letter to the manufacturer as part of your investigation into the "serious incident" as part of your fact gathering before a report to the HSE (you maybe should be reporting it to the HSE anyway). They may be more interested when faced with involvement of regulatory bodies and the shut down or recall of every machine they have in the UK (an unlikely and nuclear option from the HSE but put some fear into them). This all could backfire onto your installer if he's built the machine wrongly and it's not a manufacturer fault.

[mikeveal]

Usually your contract is with the entity you paid the money to. Your legal route to sorting this out is through them.
As you don't have a contract with the manufacturer, you can't pursue them. The manufacturer may offer to help, but they don't have to. You are not the manufacturer's customer.

You claim from the business that sold you the goods.
They claim from the business that sold them the goods.

These are two separate contracts. The latter one has eff all to do with you. The lack of response that the installer is getting from the manufacturer is not your problem. Whilst you may understand that the installer is stuck, he still has to make the kit work, or refund you,

I'm not going to comment on any warranty time periods as this is a business to business transaction and I don't know how the rules differ from consumer legislation.
IANAL.

[Taozzz]

From contract point of view, there is no consumer rights when it comes to B2B, as the phrase itself suggests. Everything is down to the contract.

From compliance point of vew, Is the machine CE marked, with Declaration of Conformity and Technical Files? If not, you might have a case against the installer. Even if this is not in the contract, it would've been implied that any machine made available on EU market needs to be CE marked, and a proper CE marking process would've picked up any unsafe aspects of the machine.

Was there an commissioning and acceptance process? If the machine was "officially" handed over to you, then it would be your responsibility to keep your people safe under PUWER.

Going back to the the relationship between you, the installer, and the manufacturer, your only redress would be from the installer as you don't have a contractual relationship with the manufacturer. Most machinery manufacturer would tell you (correctly) that the safety of an machine depends greatly on how it's installed. For all you know, the installer could've missed (not installed) several vital parts of the machine.

All the above is quite generalized as there isn't much more detail.

[Woody3]

Thanks for the replies chaps - pretty sums up what we thought.

To be fair to the installer, it was a "plug and play" piece of equipment - there was no physical work required putting it together on site. It was actually delivered to site by the manufacturer (made in Italy if that makes any difference).

I'm back in touch with the installer now, so hopefully we'll get the issue resolved now I'm confident who to pursue.

Thanks again.

[anonymous-user]

If the installer is an approved installer recommended by the manufacturer, then you might have a route to go to the manufacturer to say something along the lines of 'this bandit you recommended has made a pig's ear of the job, help me put it right'

But, in principle, your contract is with the installer. His ability to get joy from the manufacturer is his problem, not yours.

[skwdenyer]

With regard to the “no contract with the manufacturer” argument are posters not a little out of date on privity if contracts? The Contracts (Rights of Third Parties) Act has been around for quite some time now.

If the manufacturer offers a warranty (even if only to indemnify the installer) and the installer doesn’t fix the issue, that Act (all other things being equal) grants the OP the right to enforce the warranty to achieve a result.

There are also plenty of bits of “consumer” law that apply equally to B2B transactions, just that some of the “easier” remedies are missing.

If the OP would like to post a few more details (not naming names of course) then I’m sure some here might be able to help some more.

[hutchst]

That is hardly likely to be of any help to him. It would only allow him to enforce an existing term in the contract between the manufacturer and the installer that was intended to benefit third parties (or more accurately, did not exclude third parties). If he does have any claim against the manufacturer, or importer, or wholesaler, or anybody else in the chain on the other side of the installer, it will be in tort, and he will need proper lawyers and deep pockets to go that route.

[bladebloke]

Taozzz said:

From contract point of view, there is no consumer rights when it comes to B2B, as the phrase itself suggests. Everything is down to the contract.

That’s a bit of a misleading statement for the OP to read. Statute steps to imply key terms in both B2B and consumer scenarios, it’s just a different act that does it (these days). The key terms I’m referring to in this situation are the need for goods supplied to be of satisfactory quality and for for purpose and (if relevant) for the installer’s services to be carried out with reasonable care and skill.

Fair enough, there are differences between the two regimes, including that there is much more scope for excluding/modifying the statutory terms in a B2B contract. But even then, it can only be done so far as is reasonable and in my experience, many smaller trading businesses don’t have good enough t&cs to do this effectively (or at all)

OP, basically I’m saying that in a B2B scenario, you still have statutory rights and a supplier can’t supply defective goods and give no remedy for that. If the terms of the contract purported to allow this, the relevant clauses would not be reasonable and therefore not enforceable.

Hope you get it sorted.

[BeeBopp]

So you do have a remedy against the manufacturer albeit in delict and not in contract if the goods are defective and you have suffered a foreseeable loss as a result of this defect (heavily summarising loads of law in one sentence). In practice, this could make no difference to your prospects or a massive difference (depending upon the facts).

If you have suffered a decent £ loss, go talk to a decent regional firm. Your first appointment is normally free, and advice from a partner at a regional firm is only 250 per hour. It may not be a very complex case and so may be reasonably cheap to cover. Your E&O insurance may cover your legal costs, and it would be an operating cost for your firm.

[BeeBopp]

BeeBopp said:

So you do have a remedy against the manufacturer albeit in delict and not in contract if the goods are defective and you have suffered a foreseeable loss as a result of this defect (heavily summarising loads of law in one sentence). In practice, this could make no difference to your prospects or a massive difference (depending upon the facts).

If you have suffered a decent £ loss, go talk to a decent regional firm. Your first appointment is normally free, and advice from a partner at a regional firm is only 250 per hour. It may not be a very complex case and so may be reasonably cheap to cover. Your E&O insurance may cover your legal costs, and it would be an operating cost for your firm.

Yes yes tort not delict. Betraying my point of origin and training. I still prefer pursuer to plaintiff...

[bladebloke]

BeeBopp said:

Yes yes tort not delict. Betraying my point of origin and training. I still prefer pursuer to plaintiff...

You may perhaps be forgetting that save for some limited exceptions, pure economic loss cannot be recovered in tort. So if it’s just pecuniary loss, the only remedy is in contract, against the supplier.

[BeeBopp]

bladebloke said:

You may perhaps be forgetting that save for some limited exceptions, pure economic loss cannot be recovered in tort. So if it’s just pecuniary loss, the only remedy is in contract, against the supplier.

Fair point, well made, I had indeed forgotten that axion.