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JGM, Solicitor
Category: Law
Satisfied Customers: 12188
Experience:  30 years as a practising solicitor.
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i am a retailer and a customer is taking action against me

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i am a retailer and a customer is taking action against me in the small clams court.
We supplied and Installed a kitchen floor in his house and the floor has begun to lift, it is directly stuck to screed and plywood (supplied and fitted by us) I have detected dampness which I believe to be causing the problem, the customer and his witness claim faulty installation. The sheriff has adjourned the hearing until tomorrow but has indicated that he sees this as a service contract covered by common law and not under the sale of goods act where we would have a right of rectification.
Thank you for your question. I am a solicitor in Scotland and will help you with this.
This is a common law case as the Supply of Goods and Services Act 1982 does not apply to the supply of services in Scotland.
You can competently argue that, if the fault is through materials or workmanship, you should be given the opportunity to put things right. The reason for that is that any person claiming against you has to take all steps to minimise their loss. By simply demanding a full refund they are not doing so.
And of course the orders of proof is on them to establish that the default arose from materials or workmanship as opposed to any other reason, such as dampness.
Happy to discuss further.
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Customer: replied 3 years ago.

The only question I have here is how a refund is minimising the customers loss or do you mean my loss?

That's the point.
By claiming a refund the customer is not minimising his loss as he has a legal duty to do so so his claim for a refund should be refused.
It's a bit like buying a car with an engine fault that can be fixed. The court will allow the cost of repair but not a refund of the cost of the car.