Q: Can a retailer sell an item with known cosmetic damage from the showroom and as long as the customer accepts this at point of sale (face to face, not online) the item cannot be returned for this reason?
A: In relation to ex-display or returned goods we are often asked at the Furniture and Home Improvement Ombudsman whether goods which are sold as ex-display items or “seconds” attract any consumer rights at all since arguably, furniture which is ex-display or “reconditioned” will have received unquantifiable usage which will impact upon its durability and potentially also its quality.
Under the Consumer Rights Act 2015, if the product is faulty or not fit for purpose the remedies would be the same as those for new goods, however if a consumer simply changed their mind, this would depend upon the returns policy (assuming that the sale was not made via distance means).
The limitations of these remedies will depend to a certain degree upon the original condition of the furniture when purchased by the consumer and the price paid – it is fair to say that the consumer should reasonably have lower expectations as a result of this. However to simply chalk up an item as “sold as seen” would not be sufficient, placing too much onus on a consumer as to the condition of the items and to identify any faults which may be present. A consumer will have no rights to anything which is pointed out to them prior to sale, but would be able to bring a claim in respect of anything which arose subsequently. An example of how this might work in practice would be a bed frame sold as a clearance item with a scuff on the headboard which was notified to the consumer prior to the sale. The consumer would not be able to bring a subsequent claim relating to the damage notified upon the headboard, however should a slat subsequently break due to a proven manufacturing fault (such as issue with the bracket, knot in the wood or the like), a claim may arise in respect of this aspect of the furniture. Photographs of the agreed condition at the point of sale would help prove this if it were disputed at a later date.
It is also worthy of note that any issues brought to a consumer’s attention prior to the contract being entered into will form part of the contract so rather than attempting to mark-up a product as “sold as seen” it may be worth taking the opportunity to accurately describe any issues with the goods being sold including information as to current condition, any damage and perhaps, in the instance of ex-display models, how long these had been in use on the showroom floor in order to mitigate exposure to claims arising subsequently.
A further consideration for retailers here is the existence, or otherwise of a manufacturer’s guarantee. Retailers have raised a commercial concern that when they sell an ex-display model they are often doing so without the backing of a manufacturer’s guarantee. Where retailers tend to keep displays on the shop floor for at least a year and manufacturers guarantees generally only cover the first year. This has no bearing on the consumer’s rights which are relevant for up to 6 years under the Limitation Act 1980 in England & Wales. Therefore if a further defect does become apparent, the retailer will be liable to provide a remedy, notwithstanding any support from up the supply chain.
So we can see, therefore that retailers still have obligations relating to ex-display items, even if these were sold on from designated second-hand stores. We advise that as much information as possible be provided in order that consumers can make informed choices as to what they are buying and to reduce complaints about mis-managed expectations.
