Sellers of a leather suite rejected by the buyers as defective, who repeatedly failed to uplift it, had lost their right to demand return of the goods as a condition of a refund of the price, the Sheriff Appeal Court has held.

Appeal Sheriff Andrew Cubie gave his decision in refusing an appeal by R & J Leather (Scotland) Ltd against a decree for payment in favour of Christina and Peter Johnston.

The pursuers had ordered and paid for a custom-made leather suite from the defenders' Uddingston showroom. When the suite was delivered on 30 June 2017 it was found to be of poor quality. The pursuers intimated rejection at the showroom the following day. They were told to phone head office. They emailed and phoned rejecting the suite and seeking repayment. They were told a driver would be sent. Three days later employees attended and corrected a defective mechanism. While Mrs Johnston was again on the phone about having the suite removed, they left again. On advice the Johnstons sent a recorded delivery letter intimating rejection and seeking repayment. Such a letter was rejected seven times. Other approaches were ignored or rebuffed.

Mrs Johnston raised a simple procedure claim, which was undefended. On 14 December she obtained an order for payment, but not for removal of the suite. The Johnstons then decided to give away the suite, but after having a charge served in relation to the order for payment the defenders lodged an application to recall the order. Mr Johnston was joined as a claimant and evidence was heard, after which the sheriff again ordered payment, excusing the failure to be able to return the suite.

The defenders appealed, arguing that the obligation to make the rejected goods available as a condition of recovery of the price, applied without limit of time and irrespective of any intervening developments and of their actions. Whatever the equities, the defenders were entitled to return of the goods.

Sheriff Cubie accepted that the sheriff had erred by considering remedies which were not sought and not triggered by the short term rejection. However it was not in dispute that the sheriff was entitled to find that the short term right to reject had been exercised.

He continued: "The argument that there is an unqualified duty [in the Sale of Goods Act 1979], without limit of time to retain the goods has a superficial attraction, given the wording of the Act. However I conclude without difficulty that whatever the wording  in s 20(7) ('from the time' and 'make the goods available'), an interpretation which leaves the duty as open-ended, unqualified and indefinite is an unattractive proposition which is not supported by the authorities cited or statutory interpretation in general...

"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 could not be without limit of time or unqualified. It might be necessary, or at least appropriate, in some cases for the consumer to intimate that, in the absence of removal, the goods would be otherwise disposed of. "But circumstances may arise in which the actings (or inaction) of the seller are in such terms as to entitle the consumer to do as he or she wishes."

In the circumstances of this case, the Johnstons were entitled to dispose of the suite. The rejection was made immediately and unequivocally. Despite their repeated attempts to make contact, the defenders deliberately avoided engagement with them. The Johnstons legitimately considered that the initial order in their favour had brought matters to an end. "By their attitude, R&J effectively abandoned their right to seek recovery... 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."

The sheriff concluded: "R&J have only themselves to blame for their inability to recover the item."

Click here to view the judgment.