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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8537
Experience:  I have been practising for 30 years.
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We have a hot tub that has been sold to a customer. The

Customer Question

We have a hot tub that has been sold to a customer. The customer chose the colour from a 1cm printed square representation in the brochure. She did not ask to see our colour samples. The colour of the hot tub itself is a Silver and Black swirl, but in the brochure it appears to be a White, Grey and Black swirl with a purple hue running through it. The customer is saying that she thought she was buying a black, white and purple swirl spa which is not the case. Where do we stand? She has signed an order to have this spa specially made for her. The only thing it says in the brochure is "Specifications subject to change".Many thanks.
Submitted: 7 months ago.
Category: Law
Expert:  F E Smith replied 7 months ago.
Why do you want to drop the charges? Are you being pressured to do so?
Customer: replied 7 months ago.
I don't understand the answer in relation to the question? The customer is demanding a refund. Not sure how this relates?
Expert:  F E Smith replied 7 months ago.
I apologise. That was a cut-and-paste that didn’t drop out when I replied to your question.I need some more information from you please. Do you have any kind of disclaimer in your leaflet which says that the colour will vary? You say that she signed the order, has it been delivered yet? What is the up-to-date situation?What is she asking for? Full background details would be really useful please. Thanks.Best wishesFES
Customer: replied 7 months ago.
Hi, no the only disclaimer we have is "specifications subject to change without notice". Unfortunately no disclaimer on colour. Yes the spa has been delivered by crane and unwrapped, it is still sat in her garden. She has paid in full for the item prior to delivery.She is asking for either a refund or a reasonable offer (not sure if she means discount or to re order the spa in another colour). I sadly feel she will push for a refund.Background details are that she came into one of our showrooms, saw similar spas (other models in the same range). Then ordered her model with specific options and that colour. But chose the colour using only the small picture in the brochure. It was then ordered from the factory in the USA about 2 months ago. It was then installed and she wants to refuse it because she feels it's not the colour she ordered. She expected the colour to have some purple running through it because the photo looks to have a slight purple in it (it's actually a trick of the light I think as it is an actual photo I believe from that acrylic colour).
Customer: replied 7 months ago.
But I suppose we'd like to know if she is entitled to anything? Refund, new spa or part refund. It's a £13k spa ordered to her exact specification.
Expert:  F E Smith replied 7 months ago.
Thanks. You cannot rely completely on the change without notice wording. For example, you couldn’t make any unreasonable changes such as showing a black one but then giving a red one.The majority of brochures like this have a disclaimer on which says that, the colour is only representative and that you cannot guarantee a colour match and that if anyone wishes to verify the actual colour, they should ask for a sample.Sometimes, in circumstances like this, customers will look for any slight defect to either wriggle out of paying or to get a discount or to cancel the order quite simply because they have changed their mind.You can find out what she wants by simply asking her or making an offer and seeing whether she refuses it.Legally, under the Sale of Goods Act, the goods have to be fit for purpose and of satisfactory quality and if by description, as described. This is a potentially a breach of the act but it does not mean that she would be entitled to all her money back. What she would be entitled to would be compensation.She has a perfectly good spa and the colour is only slightly different than what she was asking for. If it was red or green, it would be a different situation but she seems to be unnecessarily pedantic. If this were to go to court, she would get offered compensation in respect of the slight variation in colour but it is unlikely to be a fantastic amount of money and it is also unlikely that you would be ordered to take it back. What she has a claim for is slight loss of amenity and breach of contract because of the slight colour variation.For future, you need to amend your brochures.Can I clarify anything for you? Please don’t forget to rate positive. It’s an important part of the process so that experts get credited.Best wishesFES

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