What rights does a buyer have when goods are defective?

The legal position

The Sale of Goods Act, Chap. 82:30, implies the following terms into contracts for the sale of goods:

• Title (s 14). The seller has the right to sell the goods.
• Description (s 15). Where goods are sold by description, they must correspond with that description. This condition applies to all sellers, whether or not they sell in the course of a business.
• Merchantable quality (s 16(2)). Where the seller sells goods in the course of a business, the goods must be of merchantable quality. Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect (and, where appropriate, as durable), having regard to any description applied to them, the price if relevant, and all the other circumstances (s 16(6)). The condition does not extend to defects specifically drawn to the buyer's attention before the contract is made. Nor, where the buyer examined the goods before the contract, does it extend to defects which that examination ought to have revealed.
• Fitness for a particular purpose (s 16(3)). Where the buyer makes known to a business seller the particular purpose for which the goods are being bought, the goods must be reasonably fit for that purpose. The exception is where the circumstances show that the buyer did not rely, or that it was unreasonable for the buyer to rely, on the seller's skill or judgment.
• Sale by sample (s 17). Where goods are sold by sample, the bulk must correspond with the sample in quality.

A breach of any of these conditions entitles the buyer to reject the goods and recover the price, and to claim damages in addition. The right of rejection is lost once the buyer is deemed to have accepted the goods (s 36). That occurs in any of three ways: the buyer tells the seller that the goods are accepted; the buyer does an act in relation to the goods that is inconsistent with the seller's ownership; or the buyer retains the goods beyond a reasonable time without telling the seller that they are rejected. The buyer is not deemed to have accepted goods before having had a reasonable opportunity of examining them (s 35). Once the goods have been accepted, a breach of condition may be treated only as a breach of warranty, giving rise to damages (s 13(3)).

As against a person dealing as a consumer, the implied conditions as to description, quality, fitness and sample cannot be excluded by any contract term (Unfair Contract Terms Act, s 9).

Practical implications

Goods that cease to function shortly after purchase, or that cannot perform a purpose expressly made known to the seller, will ordinarily give rise to a claim for breach of the implied conditions.

The buyer's claim lies against the seller, not merely against the manufacturer. A manufacturer's warranty is additional to, and does not displace, the buyer's statutory rights against the seller.

Purchases from private sellers are treated differently. The conditions as to merchantable quality and fitness for purpose apply only where the seller sells in the course of a business. A buyer from a private seller has the benefit of the condition as to description and may have a claim for misrepresentation, but has no implied assurance of merchantable quality.

A buyer who requires goods for a particular purpose should make that purpose known to the seller at the time of purchase, preferably in writing. Where the purpose is not the ordinary purpose for which such goods are used, and it was not communicated, the buyer cannot contend that the goods ought to have been fit for it.

Time is critical. Continued use of goods for a prolonged period without complaint will ordinarily amount to acceptance.

Recommended steps

Upon discovering the defect, the buyer should cease using the goods where it is safe to do so. The buyer should then notify the seller promptly and in writing that the goods are rejected and that a refund is required. Electronic communication is sufficient for this purpose. The goods should be held available for collection.

The buyer should retain the receipt, photographs or video recordings of the defect, and any technician's report.

If the buyer agrees to permit the seller to attempt a repair, it should be recorded in writing that, by agreeing to the repair, the buyer does not give up the right to reject the goods. The period allowed for the repair should be short and agreed in writing, since the reasonable time for rejection continues to run.

If the seller refuses to comply, a letter of demand should be sent setting out the defect, the applicable law and the remedy sought. Claims not exceeding TT$50,000 may be brought in the Petty Civil Court.