Auctions & CGA / Contracting out of the CGA discussion

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nigelj

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#150094 10-Jul-2014 23:41

To keep the Bargains & Deals Thread somewhat on-topic, I'm starting this thread as there is interesting aspects due to the recent law change of how auctions etc are handled + the apparent attempt by The Warehouse to try and avoid the CGA.

Relevant discussion in previous thread starts at http://www.geekzone.co.nz/forums.asp?forumid=48&topicid=129412&page_no=52#1086641

I'm going to kick things off with:

mattwnz:
nathan:

isn't this just for new goods? "as is" would imply second hand I think

Yes it would, although second hand goods are also covered by the CGA I believe.

In my experience I've personally heard car dealers during evaluating trade-ins talk about concerns of "yeah but if we sell it and the engine conks it in the first {insert period here} we could be liable under the CGA" in other words, they've lowballed trade-in negotiations due to their potential CGA liability when they resell it. (An in-trade dealer like that can't really sell a car professionally 'as-is'.

Something sold "bulk lot, untested, as-is" though, You'd have a hard time convincing the DT that CGA should apply, even if the seller was "In Trade", or say Police Auction, Liquidation Auction etc.

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#1086836 10-Jul-2014 23:47

and heres my original question (addressed above)

PhantomNVD:
So my wife picked up one of these from the Takanini store and was "read a statement from a sheet of paper" that was "some sort of waiver" saying she had no right of return for warrantee/guarantee (though she was then offered an extended warrantee for $28 (10%?)) nothing was signed

just wondering what people think of this...
1) can they waive your CG rights even if telling you so?
2) can i open the box, test for sine wave and return it as 'not fit for purpose' if it doesn't meet the clean-power-supplied criteria the manual says it should?
3) are these maybe offcast (failed QC) product?

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#1086837 10-Jul-2014 23:48

this new law vs as is where is auction hasn't been tested in court.

PhantomNVD

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#1086839 10-Jul-2014 23:54

meesham:
Here's the details of the changes, there's new rules for online auctions and another set for certain types of other auctions, plus rules about trying to contract out of the CGA. I'm not a lawyer, I have no idea how enforceable or effective these rules changes will be.

'K... thats in for the link to the new rules, no more copying between threads from me :)

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#1086868 11-Jul-2014 06:36

PhantomNVD: and heres my original question (addressed above)

PhantomNVD:
So my wife picked up one of these from the Takanini store and was "read a statement from a sheet of paper" that was "some sort of waiver" saying she had no right of return for warrantee/guarantee (though she was then offered an extended warrantee for $28 (10%?)) nothing was signed

just wondering what people think of this...
1) can they waive your CG rights even if telling you so?
2) can i open the box, test for sine wave and return it as 'not fit for purpose' if it doesn't meet the clean-power-supplied criteria the manual says it should?
3) are these maybe offcast (failed QC) product?

They can't get out of the CG rights, was it a waiver to not accept responsibility for damage to 3rd party equipment (i.e. stuff that is plugged into it). I could understand them getting you to sign something like that (i.e. trying to run your 55" tv off it and blowing it up).

Some people think you can plug anything into these things and it will run a house hold of stuff.

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#1086869 11-Jul-2014 06:41

joker97: this new law vs as is where is auction hasn't been tested in court.

The way I read it is if you buy the object to sell it then you are "in trade" this to me also suggest 2nd hand products purchased to on sell.
I.E. I buy this old computer for resell, i fix it up and put in new hardware and sell on trademe, this would mean I am "in trade" which would then be covered by the CG act so putting "as is" would not get me out of it.

Just a bit hard to prove someone is "in trade" unless you have a record of them purchasing for reselling

graemeh

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#1086906 11-Jul-2014 09:01

mrtoken:
PhantomNVD: and heres my original question (addressed above)

PhantomNVD:
So my wife picked up one of these from the Takanini store and was "read a statement from a sheet of paper" that was "some sort of waiver" saying she had no right of return for warrantee/guarantee (though she was then offered an extended warrantee for $28 (10%?)) nothing was signed

just wondering what people think of this...
1) can they waive your CG rights even if telling you so?
2) can i open the box, test for sine wave and return it as 'not fit for purpose' if it doesn't meet the clean-power-supplied criteria the manual says it should?
3) are these maybe offcast (failed QC) product?

They can't get out of the CG rights, was it a waiver to not accept responsibility for damage to 3rd party equipment (i.e. stuff that is plugged into it). I could understand them getting you to sign something like that (i.e. trying to run your 55" tv off it and blowing it up).

Some people think you can plug anything into these things and it will run a house hold of stuff.

Exactly. Consumers can not contract out of the CGA, they never have been able to.

They can get you to sign anything they like but if there is an issue it comes bac to "Consumers can not contract out of the CGA".

To answer the questions above:
1) No, unless you are a business yourself
2) If "sine wave" is the only way of meeting "clean-power-supplied" then yes
3) Doesn't matter although if they sold them as seconds and identified the faults before you bought them then you'd have trouble claiming on the basis of any of those faults.

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itxtme

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#1086908 11-Jul-2014 09:05

graemeh:
mrtoken:
PhantomNVD: and heres my original question (addressed above)

PhantomNVD:
So my wife picked up one of these from the Takanini store and was "read a statement from a sheet of paper" that was "some sort of waiver" saying she had no right of return for warrantee/guarantee (though she was then offered an extended warrantee for $28 (10%?)) nothing was signed

just wondering what people think of this...
1) can they waive your CG rights even if telling you so?
2) can i open the box, test for sine wave and return it as 'not fit for purpose' if it doesn't meet the clean-power-supplied criteria the manual says it should?
3) are these maybe offcast (failed QC) product?

They can't get out of the CG rights, was it a waiver to not accept responsibility for damage to 3rd party equipment (i.e. stuff that is plugged into it). I could understand them getting you to sign something like that (i.e. trying to run your 55" tv off it and blowing it up).

Some people think you can plug anything into these things and it will run a house hold of stuff.

Exactly. Consumers can not contract out of the CGA, they never have been able to.

They can get you to sign anything they like but if there is an issue it comes bac to "Consumers can not contract out of the CGA".

To answer the questions above:
1) No, unless you are a business yourself
2) If "sine wave" is the only way of meeting "clean-power-supplied" then yes
3) Doesn't matter although if they sold them as seconds and identified the faults before you bought them then you'd have trouble claiming on the basis of any of those faults.

And when he says consumers, I think he means retailers

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#1086911 11-Jul-2014 09:07

mrtoken:
joker97: this new law vs as is where is auction hasn't been tested in court.

The way I read it is if you buy the object to sell it then you are "in trade" this to me also suggest 2nd hand products purchased to on sell.
I.E. I buy this old computer for resell, i fix it up and put in new hardware and sell on trademe, this would mean I am "in trade" which would then be covered by the CG act so putting "as is" would not get me out of it.

Just a bit hard to prove someone is "in trade" unless you have a record of them purchasing for reselling

Proving they are "in trade" has always been hard. Sites like Trade Me make it easy as you can just look at their feedback record.

graemeh

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#1086926 11-Jul-2014 09:24

itxtme:
graemeh:
mrtoken:
PhantomNVD: and heres my original question (addressed above)

PhantomNVD:
So my wife picked up one of these from the Takanini store and was "read a statement from a sheet of paper" that was "some sort of waiver" saying she had no right of return for warrantee/guarantee (though she was then offered an extended warrantee for $28 (10%?)) nothing was signed

just wondering what people think of this...
1) can they waive your CG rights even if telling you so?
2) can i open the box, test for sine wave and return it as 'not fit for purpose' if it doesn't meet the clean-power-supplied criteria the manual says it should?
3) are these maybe offcast (failed QC) product?

They can't get out of the CG rights, was it a waiver to not accept responsibility for damage to 3rd party equipment (i.e. stuff that is plugged into it). I could understand them getting you to sign something like that (i.e. trying to run your 55" tv off it and blowing it up).

Some people think you can plug anything into these things and it will run a house hold of stuff.

Exactly. Consumers can not contract out of the CGA, they never have been able to.

They can get you to sign anything they like but if there is an issue it comes bac to "Consumers can not contract out of the CGA".

To answer the questions above:
1) No, unless you are a business yourself
2) If "sine wave" is the only way of meeting "clean-power-supplied" then yes
3) Doesn't matter although if they sold them as seconds and identified the faults before you bought them then you'd have trouble claiming on the basis of any of those faults.

And when he says consumers, I think he means retailers

Not sure if you're referring to me but when I say consumers I mean consumers. It is not legally possible for a consumer to agree with a retailer for the consumer to contract out of the CGA.

This is one of those cases where you are simply not able to waive your rights.

Stu

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#1086940 11-Jul-2014 09:28

The consumer can waive their rights. They simply don't act if there's a problem with the product.

It's the retailer that can't waive any of the consumers rights under the CGA.

graemeh

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#1086980 11-Jul-2014 10:23

BigHammer: The consumer can waive their rights. They simply don't act if there's a problem with the product.

It's the retailer that can't waive any of the consumers rights under the CGA.

No they can not.

If you think about the definition of "waive" it requires the consumer to take some action to give up their rights, this is not what you are describing.

It is probably better that I restate my earlier post using the correct legal terms. "The consumer can not contract out of the consumer guarantees act". In "purporting" to contract out of the act the retailer actually commits an offence under the Fair Trading Act.

Even in the case of a business (or goods or services acuired "in trade" as defined in the act) it is not always to enforce an agreement contracting out of the act (as the courts can overturn the agreement for a number of reasons, including that it must be fair and reasonable).

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#1086993 11-Jul-2014 10:46

It's all on the retailer. It's the retailer that cannot contract out unless the goods are sold for business/commercial use. The terminology you use does not exist ("The consumer can not contract out of the consumer guarantees act"), and makes no sense. The only time a retailer has the right to contract out of the CGA (which they must do in writing at the time of purchase, for it to be effective) is when the goods are bought for commercial/business use (also mentioned here).

Again: http://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/contracting-out-of-consumer-guarantees-act

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#1086995 11-Jul-2014 11:01

BigHammer: It's all on the retailer. It's the retailer that cannot contract out unless the goods are sold for business/commercial use. The terminology you use does not exist ("The consumer can not contract out of the consumer guarantees act"), and makes no sense. The only time a retailer has the right to contract out of the CGA (which they must do in writing at the time of purchase, for it to be effective) is when the goods are bought for commercial/business use (also mentioned here).

Again: http://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/contracting-out-of-consumer-guarantees-act

If you look at the actual legislation you will see that "contracting out" requires both parties to "contract out".

Section 43 is the key part http://legislation.govt.nz/act/public/1993/0091/latest/DLM312859.html

In particular 43(2)(c)(ii)

JarrodM

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#1087008 11-Jul-2014 11:31

graemeh:
BigHammer: It's all on the retailer. It's the retailer that cannot contract out unless the goods are sold for business/commercial use. The terminology you use does not exist ("The consumer can not contract out of the consumer guarantees act"), and makes no sense. The only time a retailer has the right to contract out of the CGA (which they must do in writing at the time of purchase, for it to be effective) is when the goods are bought for commercial/business use (also mentioned here).

Again: http://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/contracting-out-of-consumer-guarantees-act

If you look at the actual legislation you will see that "contracting out" requires both parties to "contract out".

Section 43 is the key part http://legislation.govt.nz/act/public/1993/0091/latest/DLM312859.html

In particular 43(2)(c)(ii)

that relates to business transactions see (2)(b) "supplied and acquired in trade" and you just have to look at the title of the section "No contracting out except for business transactions"

Bighammer is right, there is no way to contract out of the CGA, unless the buyer isn't a consumer ie it is for business.

Stu

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#1087010 11-Jul-2014 11:34

Cheers JarrodM, just typed that as you posted. Exactly correct.

What the act actually says is that a business cannot contract out of their obligations under the CGA. For example, if you ask to buy something (as a consumer, for personal use) at a discounted price (or at any price), the business/retailer cannot say they'll only accept the offer if you agree to waive your rights under the CGA.

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