What to Do If a New Purchase Doesn’t Work
It’s not just vague paranoia that makes people anticipate a hassle when something they’ve purchased doesn’t work. Some problems are small, like the $5 French strainer that rusted after its first use--draining rice. The Boston boutique that sold it wouldn’t take it back because “you’re not supposed to steam things in it.”
Some are major problems--a $300 videocassette recorder that took a week to figure out, a week to test and two months of back-and-forth with retailer, manufacturer and authorized repairer in a futile effort to get it working. Its Los Angeles vendor refused to take responsibility, referring consumers to the manufacturer.
“This is crazy,” says an observer. “The retailer is your source. You shouldn’t have to go to his source.”
These are not tales of changed minds up against strict no-refund policies. These are consumers who feel that they paid good money and should get something that works in return.
They should only know the law is on their side. Under state commercial codes, almost all consumer goods are sold with an implied warranty--apart from any “express” warranty. It’s usually an implied warranty of “merchantability” guaranteeing that the product will do what it’s generally supposed to do--i.e., toasters should toast. There may also be an implied warranty of fitness for a particular purpose--a retailer’s assertion that a toaster would take bagels or a Jeep can be driven in the desert.
Express warranties are another matter. They include a manufacturer’s printed warranty but could also be advertisements, in-store signs, even oral promises (harder to prove) about material, workmanship, level or length of performance.
‘Warranty of Merchantability’
A manufacturer’s warranty, however, “doesn’t relieve the seller of his duty to provide a merchantable product,” says Richard Elbrecht, head of legal services for California’s consumer affairs department. A warranty of merchantability accompanies every sale unless specifically and conspicuously revoked--usually by marking the product “As Is”--and pertains for a period of time reasonable for the product (longer for televisions sets than bread loaves). Nor is it affected by the retailer’s refund policy, which applies to changed minds, not products that don’t work.
Practically, as well as legally, the retail system seems organized for customer satisfaction. Part of retail service, it’s assumed, is standing behind the goods selected from all over and then sold, and some retailers still do it. “Our feeling is we’re responsible for every piece of merchandise we sell; we’re the interface between customer and manufacturer,” says Betsy Sanders, vice president of Seattle-based Nordstrom stores. “If there’s a problem, we talk to the manufacturer; if there’s a loss, it’s ours.”
Unfortunately, such service is fading. Many retailers are simply unwilling, like the French strainer seller, although retailers are readily reimbursed by the manufacturer.
Others claim a new factor--off-pricing. “We work on a very low margin,” says E. Matinkhou, president of Adray’s, a big Los Angeles discounter that won’t take back defective goods after five days, considering that a “reasonable” time for trial. “Some customers are lazy,” he says. “They want us to do everything but want good prices, too. We’d have to raise our prices 20%.”
Dealing With Defects
Defects are different, comments one consumer: “I know I’m giving up something, but it’s fancy displays, sales help and free delivery; the irreducible minimum is that the damn thing works as it’s supposed to.” It’s even different at other discounters: Toys ‘R’ Us stores, for example, follow a “supermarket concept,” says a corporate spokesman, “with bare walls, self-service, no promotions, but we stand behind the product. If there’s something wrong, we don’t question it. We return it to the manufacturer and give the customer whatever they want--refund, exchange, replacement.”
For consumers, the question is how to deal with the various declarations of non-responsibility. “You can say anything,” says one attorney, “and it may not be the law, but it discourages people from filing suits.” But even if the retailer makes such terms a condition of purchase, “ can they limit their responsibility by such a contract?” asks Elbrecht.
Whether the terms and limits imposed are reasonable or unconscionable is a question for courts (including small claims court). But consumers can argue vigorously, once aware of their rights. Retailers may ultimately have to help, says Terry Hilliard, executive vice president of south central California’s Better Business Bureau, “but consumers have to jump up and down and turn blue in the face to get that service, going to store management or corporate headquarters, like the old squeaky wheel.”
The consumer can also pay unhelpful retailers by credit card. If both goods and retailer fail to work, he informs his card issuer--following procedures for billing errors--that he didn’t get what was agreed on, refusing to pay the bill while he argues merchantability with the merchant.
The goal is only fairness. “You can’t be nit-picky,” warns Elbrecht, “picking out something small to get out of a deal. But if you have a meaningful objection, the law is probably on your side.”
