The facts of the case
A consumer bought floor tiles from a local supplier. During the transaction, the company’s representative assured the consumer that any extra tiles could be returned and refunded. The consumer concluded the sale and provided the seller with the room measurements to calculate the number of boxes of tiles required.
After laying the tiles, the consumer had 11 extra boxes and another box of broken tiles. The consumer contacted the company to return the extra tiles but was informed that they would not accept them because they did not have similar tiles in stock. The consumer complained that this breached the original agreement and insisted on a refund for the extra tiles.
During the Consumer Claims Tribunal sitting, the company’s director explained that the company could not accept the extra tiles because it did not have in stock that type of tiles, but it was ready to refund the value of the box with broken tiles.
The tribunal’s considerations
The tribunal noted that the consumer claimed a refund of €154, representing the value of the extra tiles. It also considered the verbal agreement concerning the return of the extra tiles which was pivotal to the consumer’s decision to conclude the sale.
The verbal agreement concerning the return of the extra tiles which was pivotal
The company defended its position by referring to its terms and conditions that state: “Returns of tiles are accepted only subject to availability in same tonality and calibre.” Hence, since the company had sold all the stock it had, it could not accept the extra tiles and issue a refund.
Furthermore, the tribunal noted that on the order form with the above clause there was also written “I am signing after I read the conditions overleaf”, but the customer’s signature was not on the form.
At this point the tribunal’s arbiter referred to article 51D of the Consumer Affairs Act, which stipulates that a commercial practice is considered misleading when consumers are not provided with important information that they require to make an informed purchase decision. The arbiter said that not only was the consumer not properly informed about this clause but the consumer was also not informed that she was going to purchase all the stock available. At that point, the consumer should have been warned that since there would be no more tiles available, she would not be able to return the extra tiles and claim a refund. On the contrary, the consumer was verbally reassured that she could return any extra tiles.
For these reasons, the arbiter upheld the consumer’s claim and ordered the trader to take back the extra tiles and refund the consumer the sum of €154. The tribunal also ruled that the expenses of the tribunal’s sitting must be paid by the trader.
Odette Vella, Director, Information and Research Directorate
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