Under the Sale of Goods Act 1978 retailers of consumer goods are not legally obligated to provide their customers a refund or replacement item unless it can be shown that the consumer good was faulty or defective at the time the consumer good was purchased.
Most providers of consumer goods voluntarily adopt a formal return policy which likely affords their customers additional rights not reflected in the Sale of Goods Act 1978. However, in the absence of a formal return policy, your ability to return consumer goods and services will be restricted to circumstances where you have a purchased a faulty or defective good.
Given the limitations of the Sale of Goods Act 1978, a provider of a consumer good that does not have a formal return policy poses a risk for its customers. The absence of a return policy can be very disadvantageous and harmful for consumers that simply wish to return a purchased item because they would like to switch the item for a similar one (i.e. exchange a blue shirt for a red shirt) or have experienced buyer’s remorse and would like a full refund (i.e. regret the purchase is its entirety).
Prior to completing the purchase of a consumer good Consumer Affairs advises consumers to consider the following steps:
If you find yourself negotiating the purchase of a consumer good with a retailer who does not have a formal return and refund policy, Consumer Affairs advises that you do not complete the purchase unless you are absolutely sure you are satisfied with the consumer good.
If you have purchased a faulty consumer good from a retailer that does not have a formal return and refund policy, Consumer Affairs advises that you:
It is at this stage Consumer Affairs notes the importance of communicating the fault or defect as soon as possible. If you fail to inform the retailer of the faulty or defective consumer good immediately upon discovery, the passage of time may compromise your ability to request a refund or replacement.
If too much time passe between discovery of the fault and communication of the fault to the retailer, the retailer may be able to argue that since the purchase of the consumer good you have mishandled or misused the consumer good in such a way that has resulted in the consumer good no longer being operational. (i.e. your contributory actions resulted in the fault).
By providing adequate evidence of the consumer good’s fault or defectiveness within a reasonable period of time the Sale of Goods Act 1978 entitles you to a full refund, store credit or replacement. It is up to you to decide if you want a repair, a replacement or if you prefer to have your money returned to you or a store credit.
If you have paid for a consumer service (e.g., a haircut, make a wedding cake or provide transportation), the commercial entity providing the consumer service has a legal obligation to exercise reasonable care and skill. If during the course of providing the consumer service, or upon completion of the consumer service, you discover that the commercial entity has failed to exercise reasonable care and skill, Bermuda’s consumer protection legislation entitles you to ask the commercial entity to either:
Bermuda’s consumer protection legislative framework states that, upon discovery of a commercial enterprise failing to exercise reasonable care and skill in providing a consumer service, the default position is to allow the commercial entity to provide the consumer service again at no additional cost to the consumer.
Alternatively, depending on the severity of the damage caused due to the poor quality of service it may be worthwhile to negotiate a discount on the original sales price. However, depending on the harm caused by the commercial entity, and the nature of the consumer service provided, it may not be possible to provide the consumer service again due to the fact that:
In circumstances where the commercial entity is unable to re-do the consumer services, the default position is for the commercial entity to provide the affected consumer with a full or partial refund of the consumer service.
It is at this stage that Consumer Affairs communicates the necessity to inspect all consumer services provided at the time of completion and exercise caution when communicating your satisfaction of work performed.
If you inform the provider of a consumer service that you are satisfied with the quality of their consumer services at the time of the completion, you will lose your ability to pursue a claim against the commercial entity in the future if you later discover they failed to exercise reasonable care and skill. Prior to communicating your satisfaction of work performed it may be worthwhile to obtain the opinion of a qualified third party.
When seeking to purchase a high cost consumer good and/or service (i.e. home renovations, motor vehicle repairs and maintenance), it is common practice for a commercial enterprise to provide, at the request of a consumer, a quote or estimate for the costs associated with providing the requested consumer good and/or service.
The purpose of the quote or estimate is to provide the consumer with a reasonable expectation for the cost of goods and/or services that may be provided. It is important to note that commercial enterprises will likely charge a fixed fee to provide either a quote or estimate.
Although obtaining a quote or estimate from a number of prospective commercial entities will result in a consumer having to incur additional costs, Consumer Affairs cannot understate the value a quote/estimate provides as it affords consumers the opportunity to make an informed consumer decision.
By obtaining a quote/estimate from a number of prospective commercial enterprises a consumer is afforded the ability to:
The purpose of this section is to communicate the difference between a quote and estimate and how they may impact the price that may be charged by a commercial enterprise. As a consumer it is important to note the difference between the two as they have the ability to negatively impact you as a consumer.
Consumer Affairs appreciates that it is not uncommon for a consumer to purchase a new consumer good to later discover that the item purchased is faulty and/or broken. In such circumstances it is not unreasonable for a consumer to return the consumer good in order to have it replaced, repaired or to obtain a refund on the basis that the consumer good was:
If you find yourself having purchased a damaged or faulty good, Consumer Affairs advises that you review the return policy that was provided at the time you purchased the consumer good and/or service. Consumer Affairs cannot understate the importance of being familiar with the terms and conditions of the return policy of the commercial enterprise you purchased the consumer good and/or service from.
It is not uncommon for return policies to stipulate limitations (i.e., item must be returned within 30 days of purchase) that dictate when may be able to obtain compensation and the kind of compensation you may be entitled to (i.e., store credit or replacement).
It is important to note that if a commercial enterprise does not have a return police the Sale of Goods Act 1978 creates an obligation on the seller of commercial goods to ensure that their consumer goods are of satisfactory quality. For clarity, the criteria that are considered when determining whether a consumer good is of the satisfactory quality includes:
A commercial enterprise’s failure to ensure that a consumer good is of satisfactory quality amounts to what is considered a breach of warranty. A consumer that has been subjected to a breach of warranty may be entitled to a refund or reimbursement for the purchase price of the consumer good or a replacement.
However, there may be circumstances where a consumer’s ability to rely on the Sale of Goods Act 1978 may be restricted. A consumer will be unable to rely on the Sale of Goods Act 1978 if:
Additionally, Consumer Affairs appreciates that there are also circumstances where a consumer may want to return a consumer good as they may have changed their mind immediately following purchase (i.e., buyer’s remorse).
If there is nothing wrong with the consumer good and you have changed your mind, you might be able to return it if you act within a reasonable period of time. Much like returning a damaged or faulty consumer good, it is advised that you familiarize yourself with the terms and conditions of the return policy of the commercial enterprise you purchased the consumer good from.
It is not uncommon for return policies to stipulate limitations (i.e., item must be returned within 30 days of purchase) that dictate that dictate when may be able to obtain compensation and the kind of compensation you may be entitled to (i.e., store credit or replacement).
If the commercial enterprise does not have a formal return policy, you may rely on the Sale of Goods Act 1978 to return a faulty and/or damaged consumer good so long as you do so within a reasonable period of time following purchase of the consumer good. Failure to act within a reasonable period of time will compromise your ability to return your consumer good.
Having covered the legal rights you may be able to rely upon when seeking to return a consumer good, the purpose of the remainder of this section is to: (i) discuss how to return a consumer good to a business that has become unreachable; (ii) how to confirm if a business is declared bankrupt; (iii) how to register a claim against a bankrupt business; and (iv) the impact of limited liability companies and priority creditors.
Consumer Affairs recognizes the value in “Buy Bermuda” as many commercial enterprises offering consumer goods and services are afforded the ability to extend a warranty to their customers. Commercial enterprises offering warranties in Bermuda typically do so on the basis that they have:
The existence of a valid consumer warranty cannot be understated as a warranty acts as a guarantee of quality for consumer goods and services purchased. In addition to ensuring that you are protected from purchasing a faulty or damaged consumer good, warranties and guarantees supplement your legal rights currently outlined in Bermuda’s consumer protection legislative framework.
Consumer Affairs has observed that the consumer rights typically outlined in a warranty affords consumers a higher level of protection not currently outlined in Bermuda’s consumer protection legislative framework; so long as the consumer does not act in contravention of the warranty.
It is at this stage Consumer Affairs advises that when you are considering the purchase of a high-cost item (i.e., appliances, electronic equipment, computers, tools, and motor vehicles) you consider:
Although the terms and conditions outlined in each warranty differ, Consumer Affairs advises that you consider the following guidelines to ensure that you do not act in such a way that voids your warranty:
Buying abroad: Consider that if a product leaves the country of sale (i.e., purchased a laptop or mobile phone overseas) the warranty may be declared null and void or you may have to be in the country of purchase to make a claim on your warranty;
Read the Fine Print: Check what the warranty covers and for how long as your warranty may only cover periodic maintenance work, replacement of faulty parts for up to 5 years after purchase;
Warranty Registration: For warranty registration cards make sure that the seller has filled in details of the purchase, otherwise the card might not be valid. If you sell the consumer good during the warranty period, you may have to up-date the warranty registration details in order to reflect the purchaser of the consumer good.
Supporting Documentation: Make sure you keep all supporting sales documentation supplied with the purchased of the consumer goods as the supporting sales document will like provide information on how to effectively maintain the consumer good and how to make a claim under the warranty.
Under contract law, if your warranty is unclear and uses confusing language, it may be argued that the warranty was drafted in such a way to make it very difficult to submit a claim. In such a circumstance the warranty and purchase of the consumer good will likely be considered void as it may be argued that you purchased the consumer good in reliance of the warranty.
In addition to failing to satisfy the basic principles of contract law (i.e., the terms of the contract must be clear and use plain language), the use of complicated and/or confusing language is considered an “unfair trade practice”. If you find yourself considering the purchase of a consumer good and are uncomfortable with the language of the warranty provided, Consumer Affairs advises that you do not complete the sale and instead consider an alternative provider.
The following sections are intended to provide guidance on the common consumer issues faced when making a claim against a warranty.
Consumer Affairs recognizes that there may be circumstances where a consumer may be subjected to fraudulent or misleading sales practices in order to manipulate them into purchasing a consumer good or service.
Under the Consumer Protection Act 1999, misleading and fraudulent advertising is considered an “unfair trade practices” and those commercial entities found participating in “unfair trade practices” may be subjected to financial penalties and/or imprisonment.
The purpose of this section is to identify circumstances where fraudulent or misleading advertising may arise and provide consumers with guidance on how to circumvent the consumer risks associated with such commercial activities.
Consumer Affairs recognizes that there may be circumstances where a consumer may be subjected to fraudulent or misleading sales practices which are intended to falsify the authenticity of a consumer good (i.e. knock-off designer clothing).
Under the Consumer Protection Act 1999, misleading and fraudulent advertising is considered an “unfair trade practices” and those commercial entities found participating in “unfair trade practices” may be subjected to financial penalties and/or imprisonment.
The purpose of this section is to identify circumstances where commercial enterprises deliberately misleading consumers into purchasing fake or counterfeit goods and provide consumers with guidance on how to circumvent the consumer risks associated with such commercial activities.
Consumer Affairs understands that there will be instances where a consumer purchases a large consumer good from a commercial entity and requests to have their consumer good delivered to their residential address. In these circumstances it is not uncommon for consumers to experience delays in receipt of delivery of the consumer good.
It is worth noting at this stage that responsibility for the late, or non-delivery, of the consumer good will depend on various factors. Responsibility for delivery will vary depending on whether:
The purpose of this section is to identify circumstances where consumers may experience delays in the delivery of consumer goods and provide guidance on how to mitigate the associated risks
Consumer Affairs understands that there will be instances where a consumer unknowingly purchases a stolen consumer good. The purpose of this section is to provide guidance on how to mitigate the associated risks associated with purchasing a stolen consumer good and the actionable steps you should take upon discovery.
Consumer Affairs understands that there will be instances where a consumer is pressured by a seller to purchase a consumer good, or a seller partakes in misleading statements, in order to coerce a customer into purchasing a consumer good or service they would not otherwise purchase. The purpose of this section is to provide guidance on how to mitigate the risks associated with undue pressure and misleading statements.
Consumer Affairs recognizes that there will be occasions where a consumer purchases a consumer service which unfortunately results in consumer harm (i.e., a landscaper accidentally permanently damages the fixtures and fittings of a customer’s home during the course of providing services). It is important to note that under the Consumer Protection Act 1999, commercial entities providing consumer services are legally obligated to exercise “reasonable care and skill”.
In the event a commercial entity causes damage to a consumer and/or their property, the commercial entity is considered to be operating in breach of the Consumer Protection Act 1999; even if the commercial entity has a sign or notice saying they are not responsible for items left with them as this is considered an “unfair trade term”.
The purpose of this section is to provide guidance on how to mitigate the risks associated with consumer harm caused by commercial entities failing to exercise reasonable care and skill during the course of providing a consumer service.
Consumer Affairs recognizes that there will be occasions where a consumer purchases a consumer service which unfortunately results in consumer harm (i.e. a landscaper accidentally permanently damages the fixtures and fittings of a customer’s home during the course of providing services).
It is important to note that under the Consumer Protection Act 1999, commercial entities providing consumer services are legally obligated to exercise “reasonable care and skill”.
In the event a commercial entity causes damage to a consumer and/or their property, the commercial entity is considered to be operating in breach of the Consumer Protection Act 1999; even if the commercial entity has a sign or notice saying they are not responsible for items left with them as this is considered an “unfair trade term”.
The purpose of this section is to provide guidance on how to mitigate the risks associated with consumer harm caused by commercial entities failing to exercise reasonable care and skill during the course of providing a consumer service.
Consumer Affairs recognizes that there will be occasions where a consumer gets an instant sense of regret following the purchase of a consumer good (i.e., “buyer’s remorse”). Buyer’s remorse is typically associated with the purchase of expensive, high-value consumer goods (i.e., motor vehicles, appliances, electronics, etc.). Buyer's remorse is an emotional response and often involves feelings of regret, fear, depression and/or anxiety.
In such circumstances is not uncommon for consumers who experience buyer’s remorse to seek to return the consumer good and obtain a refund or replace the consumer good with an alternative (i.e., replace blue pens for black or red pens). Consumer Affairs appreciates that the best way to cope with buyers' remorse is to make sure that you are as informed as possible; prior to purchase and post purchase of a consumer good.
It is at this stage that Consumer Affairs places an emphasis for consumers to familiarize themselves with the terms and conditions of a commercial enterprise's return policy prior to completing the purchase of a consumer good.
Depending on the return policy of the seller, you will not always have an automatic right to a refund or a replacement consumer good; especially if there is nothing wrong with the consumer good, you have used some of all of the consumer good, or too much time has passed since the purchase was completed.
Furthermore, if the seller’s return policy states you may be entitled to a store credit you will not be eligible for a cash refund. The purpose of this section is to provide guidance on how to mitigate the risks associated with buyer’s remorse following the purchase of a consumer good.
Consumer Affairs appreciates that there will be circumstances where a consumer purchases a consumer service and then wishes to cancel the services either before the services have started, or while the services are being provided. The purpose of this section is to provide guidance on the various stages in which a consumer would wish to cancel a consumer service.
Whether you are buying goods from an ad in the newspaper or online, a leaving-the-island sale or from a neighbor, Consumer Affairs cannot understate that there is much higher consumer risk when purchasing second-hand consumer goods.
The legal principle of “caveat emptor” applies in circumstances where second-hand consumer goods are bought and sold (i.e. buyer beware).
Consequently, consumers are faced with the responsibility to carefully inspect the quality and suitability of the consumer good before a purchase is made as their ability to obtain refunds and legal recourse are extremely limited under Bermuda’s consumer protection legislative framework.
The purpose of this section is to provide consumers with guidance on how to effectively inspect a second-hand good and ensure they are able to effectively mitigate the risks associated with “caveat emptor”.
Most food products carry labels that show the date when a product should be bought by or when to use it by to ensure it is at its best quality. Know what the date labels mean and then determine what is safe to keep and what should be thrown away.
You can visit the Consumer Product Safety Commission (CPSC) website for important up-to-the-minute information regarding product recalls and safety news and to sign up for recall notices to be sent to you directly via e-mail.
TheU.S. Consumer Product Safety Commission (CPSC) is the authority that the Bermuda Consumer Affairs references as its primary reference for recall information. Due to the frequency and number of the recalls currently being issued, Consumer Affairs encourages you to visit the CPSC website.
Products posing an immediate and significant risk to the general public and are found to be already in distribution on the island, will be followed up with recall public notices and a visit from a Consumer Affairs Enforcement Officer to ensure recall compliance.
As the number of product recalls rise, Consumer Affairs cautions that products originating from many countries can be potentially dangerous, but primarily those being manufactured in the Republic of China are posing an ever increasing risk to the health and safety of consumers.
There calls are not isolated to any particular brand, product, industry orlocation. Recalls are being issued world-wide from the European Union to the United States.
Product problems are reported when there is a concern about the quality, performance or safety of any product. Problems with product quality can be caused during manufacturing, shipping or storage.
Recalled Product problems include:
If you are having a problem with your provider of consumer goods or services, Consumer Affairs advises that you contact the commercial entity immediately. You should be able to get their contact details from their website or from a copy of a bill or invoice.
When submitting a complaint Consumer Affairs recommends that you inform your provider of what is happening, or has happened, and what you want them to do about it. Your provider of consumer goods or services might be able to sort out the problem immediately, schedule a customer appointment to discuss the matter and/or send a customer service representative to your home to conduct an inspection (i.e. construction contractor to review works completed).
When submitting a formal complaint, Consumer Affairs recommends that you include the following information:
If your provider of consumer goods or services does not solve your problem while you're on the phone, Consumer Affairs advises that you send a follow-up email or letter repeating what was discussed. This way you will have personal record of your conversation with your supplier that may be relied upon in the future.
When you write to your provider of consumer goods or services, Consumer Affairs advises that you include your account number and any case reference numbers you have. This makes it quicker and easier to sort out your problem.
