Conservatory guarantee reveals legal complexity

Kevin Porter

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Each week former trading standards officer Richard Thomson answers your questions.

Q When we moved into our new home the firm who built the conservatory wanted £200 for transferring the remaining five years of the original guarantee into our names. Is this condition in the contract fair?

MRA (Fareham)

A What may seem to be a simple question can open a whole Pandora’s box of legal complexity.

The law has for many years frowned on ‘exclusion’ type exemptions in contracts. It has also been recently updated by the Unfair Terms in Consumer Contracts Regulations 1999, and the Unfair Trading Regulations 2008.

The regulations were supposed to make the use of restrictive clauses in contracts fair and more transparent, but all they’ve done in practice is to make them hideously complicated.

It has been the practice of many suppliers in the home improvement sector to limit any product and workmanship guarantee to the original purchaser. This enables them to make an additional charge for the guarantee should a new purchaser take over the ownership of their product. This process is known in law as ‘assignment’.

It seems to me there are two arguments against the ‘fairness’ of these assignment terms in consumer contracts.

First, what they do in effect is to limit the original guarantee to the first purchaser. A second purchaser is therefore deprived of a considerable benefit, and only discovers this is the case when they assume ownership of the product. This worsens their contract rights with no significant loss to the supplier.

Secondly, it could be argued the first purchaser paid for the ‘benefit’ under the original contract, and it will be their right to transfer it to a new purchaser at no further cost. To make an additional charge for the assignment is the legal equivalent of having your cake and eating it.

Now I can’t tell you with hand on heart whether either of these arguments will stand up in court should you decide to challenge them. That would be for the court to decide.

But you can get guidance from the Office of Fair Trading (OFT). I suggest you write to their ‘Unfair Contracts Unit’ for advice at room 505, Fleetbank House, 2-6 Salisbury Square, London, EC4Y 8JX.

Q I believe there is a well-known scam involving writing a cheque for more than an item is worth. How does this work and how can you protect yourself?

GW (Internet)

A Cheque overpayment, commonly known as ‘advance fee’ fraud is often a method used in employment opportunity scams or transactions for goods and services sold through classified adverts.

It works by a respondent ‘accidentally’ making out a fraudulent cheque for more than the value of the goods or service. They then ask for the ‘excess payment’ to be refunded along with the goods or service payment.

By the time the victim discovers the cheque is a dud, they’ve both parted with the goods or paid for the service and the crooks have long gone.

For more information about this scam, look up Action Fraud at actionfraud.uk and search for advance fee fraud.

Q Can you help me with a holiday insurance claim? The insurer is refusing my claim for a holiday I had to cancel because my GP diagnosed a previously unknown heart condition before the date of travel. I believe they are using the small print to avoid paying out.

MAO (Internet)

A After going through the details, it does look as if the insurer is being a little obtuse to say the least. I suggest you register a complaint with the Financial Ombudsman Service. The ombudsman’s services are free, and he has the power to compel the insurer to pay out or award compensation if your complaint is justified. Contact their consumer advice line for initial help on 0800 023 4567.

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