Baden Msuku

M00608178
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 The CRA sets about rights which a consumer can rely upon against a trader to allow trade to be
fairer. This extract will establish what exactly the CRA is and the remedies available to Helen and Eleanor
in making claims against the various purchases. This extract will also explore the criminal liability that
can arise from a defective product and what steps need be taken in such a scenario.

At the first instance, there has to be an establishment as to whether Eleanor is a consumer or

not to apply the Consumers Rights Act 20151. Section 2(3) of the CRA defines a consumer as ‘an
individual acting for purposes wholly or mainly outside trade or profession’2. It can be assumed that
Eleanor could plan to utilise the laptop to aid the jewellery business in selling the product online.
However it reasonable to assume that the laptop is also for personal use and nothing business
orientated as it states that it is a ‘laptop for use at home’. Therefore Eleanor is established as a
consumer and a contract with a trader is present through section 2(2) so this verifies that the given
scenario is a consumer contract. Eleanor has engaged in a sale of goods contract as regulated through
section 5(1). Consequently, Eleanor is capable of recovering her rights under the CRA as the laptop is of
unsatisfactory quality as there are minor glitches as well as the laptop functioning very slowly. The CRA
enables Eleanor’s’ rights as it can be seen that the high street store that the laptop was purchased from
are liable for breaches of sections 9 and 10 of the CRA. Section 9(1) states that goods must be of
satisfactory quality and especially section 9(2) (b) which takes into account the price paid3. Payment of
£500 for a laptop is a substantial amount and so Eleanor can expect a good quality laptop and should be
free from minor defects as mentioned in section 9(3). Section 10 also states that goods must be fit for
purpose4. A laptop that functions very slowly is unfit for purpose as any laptop is implied to work
efficiently. Eleanor has available the right to repair or replacement under section 23 but not short term
right to reject as that right only lasts for 30 days and the time has lapsed as two months have passed.
Therefore Eleanor has no right to request her money back though Eleanor can still explore the right to a
repair or replacement. It is, however, still possible for Eleanor to buy the other laptop from the other
store through section 24, final right to reject, only in the circumstance where section 23 was first
pursued. Additionally, Eleanor retains rights to sue under the general law as mentioned in section 19(9)
but cannot be compensated twice for the same loss as mentioned in the following section 19(10).

In regards to the dress purchased online, Eleanor is also deemed to be the consumer as
established with the purchase of the laptop. The fact that the dress was bought online does not
differentiate if Eleanor was to buy the goods from a store in person so she is the consumer, the online
company being the trader and it is a sale of goods contract as money was exchanged for the goods. The
difference in this scenario is that any issues raised in relation to any online purchase will also be subject
to the Consumer Credit Act 20065. The issue arises where Eleanor is refused right to a refund as the
online store states in their terms that no refunds will be given. On the perspective of the CCA, this is a
regulated debtor-creditor- supplier agreement as the creditor has provided the finance for the good

1
Consumer Rights Act 2015
2
Consumer Rights Act 2015 section 2(3)
3
Consumer Rights Act 2015 section 9
4
Consumer Rights Act 2015 section 10
5
Consumer Credit Act 2006
towards the supplier. Section 189 of the CCA defines a debtor as the ‘borrower’ and creditor as the
‘lender’ while supplier is defined under section 11(1) (b) as a ‘provider of goods towards the debtor’.
The CCA offers protection for consumers through section 75 which enables for a claim for any damages
against the supplier as well as the creditor as the creditor is jointly liable. However this remedy can only
be exercised if the good is a minimum of £100 and a maximum of £30,0006 so in the instant case Eleanor
is not able to use this remedy as the dress only cost her £45. On one hand, under the CRA, there can be
seen to be no breach as the dress satisfies section 11 which states that goods must match description
and it is mentioned in the instant scenario that ‘the dress is exactly as it was described’. Additionally a
claim for a right to reject on the basis of a sudden change of mind is not good ground for section 22 to
be explored. On the other hand, the ‘no refund’ term installed can be seen as an unfair term which,
under the CRA, will mean the term would not be binding towards Eleanor. Unfairness is subject to the
fairness test which states that a term is ‘unfair if, contrary to the requirement of good faith, it causes a
significant imbalance between the trader and the consumer, which is to the consumer’s detriment’
stated under section 62(4). An attempted definition of ‘unfair’ can be seen through the case Director
General of Fair Trading v First National Bank which stated that the term needs be contrary to good faith
and the term causes a significant imbalance in rights and obligations under the contract. To apply this to
the given scenario however, the term does not necessarily cause a significant imbalance to the
detriment of Eleanor. The ‘no refund’ term is only on sale items and a refund is still possible if the goods
are faulty or inaccurately described which still gives Eleanor a good bargaining position. To add to that,
the term was in a clear link that set out clearly the ‘no refund’ policy which Eleanor accepted to. Under
section 64 the term must be both transparent and prominent for there to be a claim of unfairness. To
add on to that, the average consumer is well informed, observant and circumspect as defined in section
64(5). It is not sufficient that Eleanor simply omitted in reading the terms and conditions, which were
clearly set, just because she wanted to get on with purchasing the dress. This issue can be related to the
Parking Eye v Beavis case where a term was subject to the fairness term but the term was held to be
‘not unfair’ as the company had a legitimate reason in including that term. This can be closely related as
the online company may have a legitimate interest in a ‘no refund’ policy on sale items within in their
terms for their business. Therefore Eleanor cannot make a successful claim for the dress as a simple
change of mind is not good grounds to raise a claim.

Lastly, Eleanor is again see seen as the consumer regarding the purchase of the casserole dish
and has contracted with the local independent kitchenware shop which is the trader. The dish shattering
upon first use brings about civil and criminal liability. In first instance, the casserole dish busting upon
first use with the description that it was oven-proof is a breach of sections 9, 10 and 11 of the CRA.
Eleanor can therefore proceed in seeking remedies through sections 22 which will allow refund of the
full amount or a right to a repair or replacement under section 23 if Eleanor prefers the same dish. In
addition, the Consumer Protection Act 19877 as well as the General Product Safety Regulations Act
20058 comes into effect as there is product liability. Helen would succeed in bringing a claim even
though she did not contract for the dish as she is the ultimate consumer. Manufacturers owe a duty of

6
Consumer Credit Act 2006 section 75
7
Consumer Protection Act 1987
8
General Product Safety Regulations Act 2005
care to the ultimate consumer as initially established through the Donoghue v Stephenson case. The CPA
is an act that derives from the EU directive 2001/95/EC and it is to ensure that only safe goods are put
on the market. Under the CCA Helen is eligible to make a civil claim against the store as part of the said
act shows that the store is strictly liable and section 2 explains that the producers can be held
accountable. The casserole dish is deemed as defective and under the act section 3 defective has been
interpreted very widely as to protect consumers. This can be exemplified in the case of A & Others v
National Blood Authority where it stated that ‘A product is defective if does not provide safety which a
person is entitled to expect’ and that there was strict liability used. Therefore, Helen has the rights to
claim for damage caused by the dish under section 5 of the CPA as the section allows for claims to
damaged property worth over £275 (section 5(4)).

Helen can also hold the kitchenware shop criminally liable under the GPSR as the unsafe product
could’ve done more harm. Part II of the CPA also consists of provisions dealing with consumer safety
through criminal law which Helen can also claim for as well. Under the CPA it is a criminal offence to
breach safety regulations as explained in section 12 and section 19 defines ‘safe’ as a good with ‘no risk’.
So Helen has the rights to raise a claim under criminal law to the local authority and the local authority
would then investigate and prosecute accordingly. Enforcement bodies will then have the authority to
serve suspension notices under section 14 as well as having their goods forfeited under section 16. The
CPA only applies to breaches of safety regulations made under section 11 while the GPSR regulates
breaches in product safety. Regulation 5 of the GPSR requires producers to supply only safe products
and product over here defined as ‘goods intended for consumers’. In the given scenario, the
kitchenware store can be seen to be in breach of all these regulations so can be held criminally liable.
Regulation 20 states that any breaches to regulation 5 can result in a penalty of 12 months in prison or a
£20,000 fine. Helen can use her rights in making a claim towards a local authority that would then serve
safety notices towards the store as regulated under regulation 10.

To conclude, the CRA can be seen to protect Eleanor and allow her rights in purchases that were
defective or unsatisfactory and protected her from unfair trade. Advice has also been given on the
criminal liability relating to the casserole dish which Helen had rights to claim for criminal liability.
Bibliography
Primary
Consumer Rights Act 2015

Consumer Credit Act 2006

Consumer Protection Act 1987

General Product Safety Regulations Act 2005