Am I entitled?

Mimikyu

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jhegarty

Solitaryman666 wrote:

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you are entitled to a repair,refund or replacment ..... but its up to vodaphone which one to give you....

Mimikyu

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ai ing

Go to one of the shops and get them to sort out the repair. Also ask them to provide you with a temporary phone for the time it takes to repair. Mate of mine was able to do this.
The phone they give you will as a temp will probably be pretty crap but it will work. If that shop wont do it try another or even better ring around the shops first to see which one will do it.

Pythia

You're entitled to any of a repair, replacement, refund at Vodafone's discretion.
Normally they'll replace it if you bring in the faulty phone wthin the first 28 days after purchase and they can see the fault. After that you get a repair only.

mad m

Mobile phone repair company up in sandyford fix all types of phones while under warranty.Vodafone will probably send it there anyway if they dont refund you,which you are entitled to get as well.

Link

Pythia

mad m wrote:

if they dont refund you,which you are entitled to get as well.

Incorrect. See here for example
http://www.odca.ie/cfmdocs/c_query/motor.cfm

A consumer purchases a new car and after a month, a major problem develops with it. The dealer offers to repair it. The consumer wants a refund.

The garage is complying with its obligations under the Sale of Goods and Supply of Services Act by offering a repair.

If the consumer decides to accept the repair, they should put it in writing to the dealer that they will accept the repair but, if it is not successful, that they reserve their right to reject the goods outright and to claim a replacement or refund.
If the consumer is not happy to accept the repair, then they should consider seeking legal advice before pursuing the matter.

Sam Vimes

first of all, i feel sorry for you. the M word is a bad word in the mobile industry (motorola by the way). they don't send it back to the manufacturer, they send it back to repair companies in ireland, so motorola were right to tell you its vodafone's problem. vodafone are within their rights to offer you a repair unfortunately, but they should give you a replacement phone to use while yours is being repaired. you'll have to pay a deposit for it though

Red Alert

It seems to me like Vodafone do a sloppy job on branding the software running in the phones, i've a 6680 which needs the occasional reboot - i'm sure Nokia didn't mess up the software like that on such an expensive phone!

axer

jhegarty wrote:

you are entitled to a repair,refund or replacment ..... but its up to vodaphone which one to give you....

The consumer has the right to choose the remedy not the seller as it was the seller who was in breach of contract. The consumer is is entitled to a legal remedy first e.g. a refund but they can accept an equitable remedy e.g. a repair/replacement

I think in this situation a fair solution would be that Vodafone are given time to repair or replace the faulty product but in the mean time give a replacement phone. If they refuse to do this then I would ask for my money back as you ARE entitled to this i.e. the goods were not of merchantable quality and this is an implied condition under the Sale of goods act.

The only problem in your situation is the length of time. You would have a stronger case if you had looked for a refund in February and its up to YOU to know your rights with regards this. They could use a laches defence i.e. that it took so long for you to bring it back and thus claiming you are not entitled to a refund - that you sat on your rights. Thats why you should just accept a repair/replacement if they will give you a phone to tie you over until your phone comes back.

Pythia wrote:

Incorrect. See here for example
http://www.odca.ie/cfmdocs/c_query/motor.cfm

The consumer does have the right to a refund even in the case of motor vehicles as if an implied condition (implied due to the sale of goods and supply of services act 1980 taking precedence unless there is an exclusion clause) is breached then the consumer can terminate the contract and seek damages i.e. a refund. This is not always the best route as there is the need for legal expertise which can cost money. There is also a limitation of two years on this which overides the statuate of limitations.

miju

axer wrote:

The consumer has the right to choose the remedy not the seller as it was the seller who was in breach of contract. The consumer is is entitled to a legal remedy first but they can accept an equitable remedy e.g. a repair/replacement

wrong , as already said and pointed out by the link the Offifce of Director of Consumer Affairs man they are complying with current legislation by offering a repair

the customer can ask for a refund (and god knows most of them KNOW they're enetitled to a refund) but it's at the retailers discretion of whether to give it or not as they're offering to remedy the problem by repairing it

axer wrote:

The only problem in your situation is the length of time. You would have a stronger case if you had looked for a refund in February and its up to YOU to know your rights with regards this. They can now argue that it took so long for you to bring it back and thus claiming you are not entitled to a refund. Thats why you should just accept a repair/replacement if they will give you a phone to tie you over until your phone comes back.

The consumer does have the right to a refund even in the case of motor vehicles as if an implied condition (implied due to the sale of goods and supply of services act 1980 taking precedence unless there is an exclusion clause) is breached then the consumer can terminate the contract and seek damages i.e. a refund. This is not always the best route as there is the need for legal expertise which can cost money. There is also a limitation of two years on this which overides the statuate of limitations.

what??????????

axer

miju wrote:

wrong , as already said and pointed out by the link the Offifce of Director of Consumer Affairs man they are complying with current legislation by offering a repair

the customer can ask for a refund (and god knows most of them KNOW they're enetitled to a refund) but it's at the retailers discretion of whether to give it or not as they're offering to remedy the problem by repairing it

It is NOT at the seller's descretion as they are the party in breach of the contract. Yes the seller is fully entitled to offer a repair but that does not mean that a consumer has to take that option. Most of the time it suits the consumer just to get a repair/replacement but they DO have to option to demand a full refund. BTW the link provided earlier was in relation to a motor vehicle which is a different scenario and is covered by section 12 and 13 of the Sale of Goods and Supply of Services Act 1980.

Here is a better link:

http://www.odca.ie/cfmdocs/documents/docs2.cfm?article_no=5423 wrote:

If the reason for the complaint is not trivial and is discovered soon after purchase, the consumer is entitled to reject the goods and insist on a full refund provided prompt action is action is taken.

miju wrote:

Axer wrote:

The only problem in your situation is the length of time. You would have a stronger case if you had looked for a refund in February and its up to YOU to know your rights with regards this. They can now argue that it took so long for you to bring it back and thus claiming you are not entitled to a refund. Thats why you should just accept a repair/replacement if they will give you a phone to tie you over until your phone comes back.

The consumer does have the right to a refund even in the case of motor vehicles as if an implied condition (implied due to the sale of goods and supply of services act 1980 taking precedence unless there is an exclusion clause) is breached then the consumer can terminate the contract and seek damages i.e. a refund. This is not always the best route as there is the need for legal expertise which can cost money. There is also a limitation of two years on this which overides the statuate of limitations.

what??????????

Which part is confusing?

fifth

Motorola, there's your problem. I buy only Nokia. :P

Pythia

Well axer, if you're right then pretty much every shop in the country is wrong.

axer

Pythia wrote:

Well axer, if you're right then pretty much every shop in the country is wrong.

Well I don't think they can argue with the director of consumer affairs!

Pythia

Originally Posted by http://www.odca.ie/cfmdocs/documents/docs2.cfm?article_no=5423
If the reason for the complaint is not trivial and is discovered soon after purchase, the consumer is entitled to reject the goods and insist on a full refund provided prompt action is action is taken.

Define soon.

Random

I believe the idea of soon is that it's open to interpretation and leaves it down to much of a case by case basis...

Mimikyu

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Random

@Solitaryman666
Where do you get your figure of 5 months from? At which point does it become acceptable to just send it for repair?

Pythia

ciaranfo wrote:

@Solitaryman666
Where do you get your figure of 5 months from? At which point does it become acceptable to just send it for repair?

AFAIK, phone shops define 'soon' to end after 28 days. After this, they'll just repair it.
They generally have a copy of their T&Cs on their receipt or on a poster beside the till.

axer

Pythia wrote:

AFAIK, phone shops define 'soon' to end after 28 days. After this, they'll just repair it.
They generally have a copy of their T&Cs on their receipt or on a poster beside the till.

Just because something is in terms & conditions doesn't mean it has a legal effect - even if you sign it.

As ciaranfo said - the length of time is left open for interpretation. If 28 days is in the T&C's of the shop then that is THEIR interpretation not something that is legally binding. "Soon" as is in the ODCA's website is the ODCA's general interpretation that is left vague - it really does depend on what sounds reasonable in the individual case.

The only restriction that comes from law is the statute of limititations which is 6 years (this is overrided by section 13 of the sale of goods act which shortens this time to 2 years for cars). Again, what is reasonable it looked at. It not just all out - give me my money back no matter when.

Here is the exact wording from section 53 Subsection (2) (b) of the Sale of Goods and Supply of Services Act 1893 -

( b ) the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition,

then, if the seller refuses to comply with the request or fails to do so within a reasonable time, the buyer is entitled:

(i) to reject the goods and repudiate the contract, or

(ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him.

A breach of contract is nearly always results some sort of Compensatory Damages (except specific performance - which is fairly rare).
So as above "the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition" - the seller can remedy the breach i.e. give back the money (refund) or can replace the goods at the buyers request.

However it is up to the buyer to show that he/she was prompt in his/her action as outlined in subsection 3 of the same section "(3) The onus of proving that the buyer acted with promptness under subsection (2) shall be on him."

So the word that is left vague is "promptness".

In the case of the OP - he didn't act promptly so he should be happy with a repair/replacement (with a phone to temporarily tying him over until his own is fixed).

EDIT: I forgot to mention that the above section of is for when the seller is in breach of warrenty. If the seller is in breach of condition then the contract can be terminated immediately by the buyer.

Pythia

Surely 'remedy the breach' could be a repair?

axer

Pythia wrote:

Surely 'remedy the breach' could be a repair?

Nope, there are specific remedies for breach of contract (taken from here):
(1) Compensatory Damages - money to reimburse you for costs to compensate for your loss.

(2) Consequential and Incidental Damages - money for losses caused by the breach that were foreseeable. Foreseeable damages means that each side reasonably knew that, at the time of the contract, there would be potential losses if there was a breach.

(3) Attorney fees and Costs - only recoverable if expressly provided for in the contract.

(4) Liquidated Damages - these are damages specified in the contract that would be payable if there is a fraud.

(5) Specific Performance - a court order requiring performance exactly as specified in the contract. This remedy is rare, except in real estate transactions and other unique property, as the courts do not want to get involved with monitoring performance.

(6) Punitive Damages - this is money given to punish a person who acted in an offensive and egregious manner in an effort to deter the person and others from repeated occurrences of the wrongdoing. You generally cannot collect punitive damages in contract cases.

(7) Rescission - the contract is canceled and both sides are excused from further performance and any money advanced is returned.

(8) Reformation - the terms of the contract are changed to reflect what the parties actually intended.

Although an agreement can be made between the two parties e.g. accept a repair.

miju

axer wrote:

Nope, there are specific remedies for breach of contract (taken from here):
(1) Compensatory Damages - money to reimburse you for costs to compensate for your loss.

(2) Consequential and Incidental Damages - money for losses caused by the breach that were foreseeable. Foreseeable damages means that each side reasonably knew that, at the time of the contract, there would be potential losses if there was a breach.

(3) Attorney fees and Costs - only recoverable if expressly provided for in the contract.

(4) Liquidated Damages - these are damages specified in the contract that would be payable if there is a fraud.

(5) Specific Performance - a court order requiring performance exactly as specified in the contract. This remedy is rare, except in real estate transactions and other unique property, as the courts do not want to get involved with monitoring performance.

(6) Punitive Damages - this is money given to punish a person who acted in an offensive and egregious manner in an effort to deter the person and others from repeated occurrences of the wrongdoing. You generally cannot collect punitive damages in contract cases.

(7) Rescission - the contract is canceled and both sides are excused from further performance and any money advanced is returned.

(8) Reformation - the terms of the contract are changed to reflect what the parties actually intended.

Although an agreement can be made between the two parties e.g. accept a repair.

something tells me that's not quite right

sdanseo

For example with my phone, it is expected to last alot longer than 5 months before breaking.

Precisely, maing it unfit for the purpose. Raepair, refund or replacement is at your own discretion if my business teacher knows what he's talking about - you're perfectly entitled to believe that the replacement phone will have the same fault;). Ask for your money back nicely, or in this case even a credit note, as you can pick another phone from the shop.

www.irishstatutebook.ie will get you the act, search under 1980. The basic principles though, date from 1893 which is not included online. ODCA is a good source but it's not the black and white letter of the law that the act itself is.

axer

miju wrote:

something tells me that's not quite right

huh?

jimmycrackcorm

I'd suggest the OP try updating the firmware first. A lot of these phones have complicated software and with a rush to release can be buggy.