My 69 year old mother signed a contract with a bed company at a seminar for almost $12,000. She was told that the bed would help her with her health issues. It did the opposite - it caused more pain and now the company is saying that all they can offer is a firmer bed, this is not an option as it will cause more pain. Looking at the contract it does not mention the cooling off period at all. We have tried consumer protection and have been told that the company cannot be forced to cancel the contract. My question is: what are her options under commercial law or contract law?
WA Commercial Law Problem with Bed Company
- Thread starter pocoyo
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Sophea
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Hi Pocoyo,
I would have a good read of the contract that she signed to purchase the bed. It may be that the company illegally failed to provide a cooling off period if it was considered an unsolicited sales contract.
Cooling off period:
“The ten business day cooling off period, which is mandatory for unsolicited sales under the Australian Consumer Law (ACL), applies if the consumer is sold a product or service during the seminar, which was not the promoted purpose of the seminar...Unsolicited consumer agreements include those made at a place other than the business premises of the trader. As these seminars are usually held at temporary public venues, such as hotels or hired conference room facilities, they are covered by the ACL...Even though a consumer may voluntarily attend these seminars to obtain free information, they may not have anticipated entering into a sales contract. Our view is that the cooling off period will apply, unless the promotional material clearly states that education or other services will be sold at the seminars.”
Warranties:
You should also check to see what claims or warranties are expressly made in the contract, and see whether they have been breached.
Implied Warranties
There are also implied warranties in any agreement for purchase of goods from a supplier or manufacturer under the Australian Consumer Law: These guarantees apply to goods and services bought on or after 1 January 2011 by a consumer from a supplier or manufacturer, in the course of trade. They apply to: any type of goods or services costing up to $40,00o.
A supplier guarantees that a consumer is buying goods that are (amongst other things) that are fit for any disclosed purpose.
Where purpose is specified by the supplier: A supplier guarantees that goods will be reasonably fit for any purpose that they told the consumer the goods would be fit for. For example:A diver buys a watch, which the supplier says will be suitable for diving. A couple of weeks later, the diver goes for her first dive wearing the new watch, only to surface and see the dial filled with water. She would have the right to a remedy from the supplier.
Consumers might want goods to do a specific job or achieve a specific purpose, different from the normal use or purpose of those goods.
A supplier guarantees that goods will be fit for such a special job or purpose if the consumer, before buying the goods: expressly or implicitly told the supplier what they want to use the goods for, and relied on the supplier’s knowledge or expertise when deciding whether the goods were suitable for that use or purpose
When there is a major failure, the consumer can:
Having considered your own circumstances with respect to this information I would again contact the WA Commerce Department and the ACCC
http://www.commerce.wa.gov.au/consumer-protection/consumer-complaint-checklist
http://www.accc.gov.au/consumers/complaints-problems/make-a-consumer-complaint
I would have a good read of the contract that she signed to purchase the bed. It may be that the company illegally failed to provide a cooling off period if it was considered an unsolicited sales contract.
Cooling off period:
“The ten business day cooling off period, which is mandatory for unsolicited sales under the Australian Consumer Law (ACL), applies if the consumer is sold a product or service during the seminar, which was not the promoted purpose of the seminar...Unsolicited consumer agreements include those made at a place other than the business premises of the trader. As these seminars are usually held at temporary public venues, such as hotels or hired conference room facilities, they are covered by the ACL...Even though a consumer may voluntarily attend these seminars to obtain free information, they may not have anticipated entering into a sales contract. Our view is that the cooling off period will apply, unless the promotional material clearly states that education or other services will be sold at the seminars.”
Warranties:
You should also check to see what claims or warranties are expressly made in the contract, and see whether they have been breached.
Implied Warranties
There are also implied warranties in any agreement for purchase of goods from a supplier or manufacturer under the Australian Consumer Law: These guarantees apply to goods and services bought on or after 1 January 2011 by a consumer from a supplier or manufacturer, in the course of trade. They apply to: any type of goods or services costing up to $40,00o.
A supplier guarantees that a consumer is buying goods that are (amongst other things) that are fit for any disclosed purpose.
Where purpose is specified by the supplier: A supplier guarantees that goods will be reasonably fit for any purpose that they told the consumer the goods would be fit for. For example:A diver buys a watch, which the supplier says will be suitable for diving. A couple of weeks later, the diver goes for her first dive wearing the new watch, only to surface and see the dial filled with water. She would have the right to a remedy from the supplier.
Consumers might want goods to do a specific job or achieve a specific purpose, different from the normal use or purpose of those goods.
A supplier guarantees that goods will be fit for such a special job or purpose if the consumer, before buying the goods: expressly or implicitly told the supplier what they want to use the goods for, and relied on the supplier’s knowledge or expertise when deciding whether the goods were suitable for that use or purpose
When there is a major failure, the consumer can:
- reject the goods or services and either choose a refund; or a
- replacement, or ask for compensation for any drop in value of the goods or services.
Having considered your own circumstances with respect to this information I would again contact the WA Commerce Department and the ACCC
http://www.commerce.wa.gov.au/consumer-protection/consumer-complaint-checklist
http://www.accc.gov.au/consumers/complaints-problems/make-a-consumer-complaint
Hello sophea thank you very much for your reply this company never mention a cooling of period in the first place I now know this company was fine $70,000 for misleading costumers in 2011 my mother specifically inform them of her health issues thru a friend as mom does not speak English I think that was a factor too I feel they took advantage of her she stopped payments now we see what happens thank you very much for your reply it has been very helpful.
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