Consumers whose new settees began to deteriorate after six months' use had to be deemed to have accepted the settees, while retaining an entitlement to damages, where their initial request for a refund was met by the response, on advice, that the problems experienced were the result of fair wear and tear and they then pursued a remedy against their credit card company, without telling the suppliers, over a period of several months. The suppliers were entitled to consider that they had achieved “commercial closure”.

Sheriff Gregor Murray gave the ruling at Forfar Sheriff Court in an action by Angus and Catherine Combe against Pert's House Furnishers Ltd, Arbroath.

The pursuers had been looking to buy “high quality” settees to help Mrs Combe with a rheumatic condition. The defenders' Mr Pert showed them what he considered to be a high quality product, which they liked. They bought two settees at a price of £3,599, paying by credit card.

Six months after delivery, they believed the seating areas on the settees to be sagging. They complained to Mr Pert, who instructed a report from an upholsterer. That concluded that while certain deterioration had occurred, it was due to fair wear and tear. It recommended remedial work.

After consulting the CAB, the pursuers wrote seeking a refund of the price. The defenders replied by founding on the report. The pursuers then claimed against their credit card company, which asked them to obtain their own independent report. This found a number of faults with the settees. They gave a copy to Mr Pert, who suggested a reference to the Furniture Ombudsman. The credit card company then asked for a second report, which the pursuers obtained via the Ombudsman without telling the defenders. The first the latter knew of it was through correspondence six months later. This report recommended replacing the seat interiors.

The defenders now accepted that the settees were not of satisfactory quality, but argued that on the evidence, the admitted breach did not go to the root of the contract.

Giving judgment, Sheriff Murray agreed with the concession, and accepted the pursuers' argument that the defects were major, entitling the pursuers to reject. However rejection had to be within a reasonable time (Sale of Goods Act 1979, s 35). Assuming, without deciding, that the pursuers' first letter seeking a refund was intimating rejection though it did not mention rejection, their actions in obtaining the second opinion, without telling the defenders and in not disclosing that opinion, “strongly point to the pursuers having chosen to pursue their claim to the credit card company at the expense of any claim against the defenders. That claim, so far as the defenders were concerned, went cold for six or seven months. Consequently, the defenders were quite entitled to consider they had achieved 'commercial closure', to borrow Lord Drummond Young’s phrase [in Douglas v Glenvarigill Ltd (2010)]. It is at that stage, in my opinion, the pursuers must be deemed to have accepted the settees”.

The case would be set down for a discussion on damages.

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