Photo by Mitchell Gaiser on Unsplash
In Chapter 2 of Introductory Scots Law, I discussed the remedies for breach of contract. In Chapter 4, I look specifically at the remedy of rescission in relation to a consumer contract for the sale of goods. We have now had the Consumer Rights Act 2015 in place for several years. An interesting case in terms of the legislation has just been heard by the Sheriff Appeal Court in Edinburgh.
In Christina Tenant Johnston & Peter Johnston v R & J Leather (Scotland) Ltd  SAC (Civ) 1 LIV-SG781-17, Sheriff Andrew Cubie decided that Mr and Mrs Johnston (the consumers) had every right to dispose of defective furniture after they had clearly communicated their desire to the trader (R & J Leather Ltd) to reject the defective goods with which they had been supplied under the contract of sale. The consumers were seeking to obtain a refund of the purchase price for the goods in terms of Section 20 of the Consumer Rights Act 2015 i.e. they had clearly expressed their desire to rescind or cancel their contract with the trader. The consumers sent letters to the trader via recorded delivery on a number of occasions in which they stated that they wished to cancel the contract. They even involved their local Member of Parliament in the dispute, but this did nothing to resolve the dispute either. In the letters, the Johnstons asked the trader to arrange uplift of the furniture. The trader failed to retrieve the furniture.
Mrs Johnston raised an action under simple procedure at Livingstone Sheriff Court in order to recover the purchase price of the contract goods. The trader did not defend the action and the Sheriff made a decree in favour of Mrs Johnston for payment of the purchase price of the goods. Mrs Johnston had asked the Sheriff to include in the decree the stipulation that traders should make arrangements to have the goods uplifted from her home. The Sheriff choose not to issue an Order in this regard. At no point after this, did the trader seek to have the goods uplifted from the Johnston family home. The Johnstons then made the decision to give the furniture away to a third party. This was quite an understandable on their part because they honestly believed that the court action had settled the matter conclusively in their favour.
They had something of shock coming because R & J Leather Ltd decided to have the Sheriff’s decree recalled on the grounds that it had been wrongly designed [designated] in Mrs Johnston’s original summons. A new hearing was arranged, this time with the trader correctly designed in the summons and, additionally, Mr Johnston was permitted to join his wife’s action as a co-claimant. After a two day hearing, the Sheriff made a decision in favour of the Johnstons: they had the right to an Order for payment of the purchase price of the goods and they were justified in disposing of the goods by giving them away to a third party because of the trader’s many failures to uplift them.
The trader then appealed to the Sheriff Appeal Court.
Finding in favour of the consumers and rejecting the trader’s appeal, Sheriff Cubie stated that:
“The rejection [by the consumers] was made immediately and unequivocally. The Johnstons made repeated attempts directly and through their MP to make contact. R&J deliberately avoided engagement with them. The suite could not be stored indefinitely. The Johnstons legitimately considered that the court order had brought matters to an end. By their attitude, R&J effectively abandoned their right to seek recovery; there is a limit to the occasions which a party can be expected to remind sellers of the rejection. In ordinary course, the buyer should retain the goods for return; but in this case I consider that the seller’s actions or inactions were in such terms as to entitle the buyer to do as they wished with the goods.”
A link to Sheriff Cubie’s opinion can be found below:
The lesson to be learned for traders from this case is that they will be under a duty in terms of Section 20 of the Consumer Rights Act 2015 to act quickly in order to uplift goods which have been rightly rejected by consumers. The duty on consumers to make the defective goods available for uplift by traders following rejection is not an open ended or indefinite obligation on their part. Traders which take a cavalier or reckless approach by failing to uplift the goods in a timely fashion may well live to regret this.
In his judgement (at paragraphs 28 & 29), Sheriff Cubie clearly lays out the respective duties of the parties following rejection of the goods:
 “It is clear that when a consumer exercises a right to reject faulty goods, there is no duty to return the goods to the seller. All the consumer needs to do is make the goods available to the seller. That imposes an onus on the seller to come and collect the goods if they wish to.
 “The duty to make the goods available cannot be without limit of time or unqualified. In considering the nature and extent of the duty to retain goods which have been rejected, the court is entitled to take into account a number of factors, including but not restricted to –
1. the timescale within which rejection was intimated;
2. the nature of the goods;
3. the practicality of providing storage;
4. the nature, extent and frequency of communications sent by the consumers to the
5. any response, or lack of response, from the sellers;
6. the length of time for which goods were retained; and
7. whether proceedings have been raised.”
Copyright Seán J Crossan, January 2019