The holiday season is just around the corner, and soon/consumer-finance Black Friday will descend upon us. For some, finding the perfect gift amidst the Black Friday madness is an exciting way to get valuable items for less. But for many of us, trying to balance work, family and finding that perfect gift for everyone on our list makes us want to faceplant into a box of Hershey’s.
No matter how you feel about the commercial nature of the season, no one wants to face the yuletide wrath of giving — or receiving — an item that’s broken, flimsy or doesn’t work as advertised. So before you rush to get that perfect gift into your freshly washed hands, be sure to brush up on consumer protection law.
Read on to learn what’s written into law — and what isn’t — on the function, delivery and durability of consumer goods.
Implied & Expressed Warranties
Fourteen months after the manufacturer’s warranty expired, Donald Curtis’s $1,500 plasma TV started acting up, he tells Consumer Reports Magazine. The controls would freeze, and as if the TV were possessed, the channels and volume would change on their own.
After nine maddening months and $800 in repair costs, Samsung agreed to replace the TV. But Curtis didn’t need to waste his time chasing down a return or forking out extra money for repairs. He had additional warranty rights that could have given him a resolution faster and for free.
If you buy a new TV and it breaks in a few weeks or even a few years, you could argue that the item wasn’t of “fair average quality.”
At the federal level, agencies like the United States Department of Agriculture (USDA) and the Federal Drug Administration (FDA) promote regulations regarding the quality of goods and services. At the state level, the Uniform Commercial Code (UCC) contains provisions regarding a seller’s responsibilities around product quality and intended use, risk of loss and other requirements.
Implied warranties, the unspoken promises written into law, require:
- Warranty of Merchantability: This unwritten protection guarantees that consumer products will operate properly for a reasonable period and will be free of substantial defects.
- Warranty of Fitness for a Particular Purpose:
a. The seller promises a product will do what it’s intended to do — an oven will cook, a toaster will toast, a bike will pedal and so on.
b. When a consumer buys a product based on the merchant’s advice, it should be suitable for a particular use. If a seller claims that their coat will keep you warm in sub-zero temperatures, the coat is covered under an implied warranty to do just that.
Keep copies of all product performance promises. Try to get spoken claims in writing. Send an email confirming the promise and keep the seller’s response.
Consumer Reports Magazine says that states usually limit implied warranties to four years, and they apply to products you buy from retailers that normally sell such items. Under typical federal regulations, the basic test for quality varies depending on the goods or services and the governing regulations at issue.
However, merchants can wiggle out of these responsibilities in a few sly ways.
According to Consumer Reports Magazine: “Most states allow companies to negate or ‘disclaim’ the implied warranty by clearly disclosing that a product is being sold ‘with all faults, ‘as is’ or by simply stating that there is no implied warranty covering the purchase. And that’s what manufacturer warranties typically do.”
“Every warranty you see is taking away rights you would otherwise have.” — Richard Alderman, Director of University of Houston’s Consumer Law Center
According to the Federal Trade Commission (FTC): “Whenever there’s a warranty, the law says it must be available for you to read before you buy something.” The FTC also cautions that — whether you shop in person or online — you should know the details of the warranty, as some warranties cover a lot and some cover a little.
Cover Your Bases
Ask to see a copy of the seller’s warranty and all policies surrounding refunds and exchanges. If you’re unsure of any of the seller’s policies, have your LegalShield lawyer review them.
‘Risk of Loss’ Items Damaged in Transit. Who Bears the Risk?
What if a merchant ships out your child’s new bike and then, somewhere in transit, the bicycle is lost or damaged? Who’s responsible for the risk of that loss — you or the seller? Like most legal matters, it depends.
According to Barnes and Barnes P.C., Attorneys at Law, the “Risk of Loss in the Absence of Breach” provision in Article 2 of the UCC implies that:
A. If the seller is required to ship the goods by carrier but not required to deliver the goods at a particular destination, the risk of loss passes to the buyer when the seller tenders them to the carrier.
B. When the seller is required to deliver the merchandise to a particular destination (your home address), the seller bears the risk of loss until tender of delivery at the destination.
If your kid’s new bike arrives with a wheel missing, the seller could claim that you, the buyer, damaged the product after it arrived. Or they could claim that you accepted the product as is by signing for it.
To avoid a “he said, she said” scenario, promptly document any damage the item sustained and take pictures of the condition your product arrived in. Better yet, take a video of you unboxing the item upon arrival. (If it’s a gift, do so behind closed doors, of course.)
A Word of Caution:
Think twice before you sign for a visibly damaged parcel, as you may be unknowingly accepting the risk for a product that was damaged in transit.
Returns, Refunds & Exchanges
We all know that merchants view returns as a nuisance, but what does the law say about such matters? According to Jocelyn Mackie, TermsFeed legal writer and former civil litigation attorney, U.S. sellers are not required by law to issue returns — and they don’t have to create a return and refund policy either.
However, in many U.S. states, a retailer that has a return and refund policy is required to post it conspicuously in their storefront or on their e-commerce website. By contrast, Civil Code Section 1723 of California requires a retailer to only post their refund policy if it contains unique requirements such as a full cash or credit refund, an exchange or a combination of these solutions.
In Canada, the laws are similar. According to BLG, a Canadian law firm with expertise in intellectual property, disputes and corporate transactional matters: “…Canada does not have any federal or provincial legislation that specifically grants consumers a general right to return products in exchange for a refund.”
Despite these laws, merchants often create their own return and refund policies to remain competitive and win customers’ trust. Amazon has a generous return and refund policy that varies based on merchandise type and this could be one reason why the site has become so popular.
Sellers who choose to establish a return and refund policy can set their own terms and conditions, but they are then contractually required to adhere to them.
In Canada, the consumer protection laws are similar. Our maple-syrup-loving neighbors have the right to receive a refund or cancel a contract within a certain period. They are also granted implied warranties of fitness for regular use, durability and merchantability. This means manufacturers have an obligation to repair, exchange or refund defective goods, regardless of their policies.
How LegalShield Can Help
Nothing dims the sparkle of the holidays faster than the disappointment of giving or receiving a broken or damaged item that a merchant won’t refund. Trying to find a resolution on your own can add another yule log to an already blazing stress fire.
LegalShield plans allow you to consult with a lawyer on any legal matter, including consumer protection laws. LegalShield Personal Plans start at just $29.95 a month and give you access to an entire network of experienced lawyers — so you can find your justice.
Pre-Paid Legal Services, Inc. d/b/a LegalShield (“LegalShield”) provides access to legal services offered by a network of provider law firms to LegalShield members through membership-based participation. Neither LegalShield nor its officers, employees or sales associates directly or indirectly provide legal services, representation or advice. This is meant to provide general information and is not intended to provide legal advice, render an opinion, or provide any specific recommendations. If you are a LegalShield member, please contact your provider law firm for legal advice or assistance.