The Italian Job

**teaboy2** · 9th November 2011, 11:39:AM

Re: The Italian Job

Well for a start they have sold the dresses to you by misrepresentation of the goods, therefore you have every right to return the goods as they do not comply with the terms of your order i.e. the dress sizes you ordered. Also you have a right to return any goods if you are not happy with them to the supplier and they are obiliged to refund you in full which they refused to do in breach of the Sale and Supply of Goods Act 1974. The dress size being different to that on the order form is a breach of contract and under the act you have the right to return the goods, (your emails to such effect being evidence of your attempt to return them and get a refund)

13 Sale by description.

(1)Where there is a contract for the sale of goods by description, there is an implied [F9term] that the goods will correspond with the description.

15A Modification of remedies for breach of condition in non-consumer cases.

(1)Where in the case of a contract of sale—
(a)the buyer would, apart from this subsection, have the right to reject goods by reason of a breach on the part of the seller of a term implied by section 13, 14 or 15 above, but
(b)the breach is so slight that it would be unreasonable for him to reject them,
then, if the buyer does not deal as consumer, the breach is not to be treated as a breach of condition but may be treated as a breach of warranty.

35A Right of partial rejection.

(1)If the buyer—
(a)has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but
(b)accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods,
he does not by accepting them lose his right to reject the rest.
(2)In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
(3)For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
(4)This section applies unless a contrary intention appears in, or is to be implied from, the contract.]

Now as per the consumer credit act 1974 well that does not apply as you have no credit agreement, it is merely a credit invoice of limited time in which to pay where non payment results in a breach of contract of the sales of goods act. But as you rejected the goods and they refused to take them back and refund you, they are the ones in breach of contract and not yourself and have no right to any payment as a result as they are in effect refusing to honour the terms of the contract regarding the sales and refusing you your right to reject the goods as a result of their breach of contract.

I would write to the solicitor state along the lines of which i have stated above and then also speak to your solicitor about issuing a letter before action to the agent as they where responsible for the sale and for ensuring the order matched the agreed terms of the sale.

Also any court actiong the italian company takes against you would be in your local court in the UK. Plus taking court action yourself against the agent would if they are UK based be in the agents local court here in the UK too.

Not only that, if the italian company what to sell in the UK then they must respect EU and UK laws.

I hope that helps.

Additional Information

Also am pretty certain that any document they sent you needs to be either in english or in the native language of the consumer they are sending the document to, hence why must companies supplying to othe nations use english in their documentation to them. Put it this way english contract law is clear the Terms and conditions must be in plain and intelligible english - Not Intalian as you per what you stated they are.

**teaboy2** · 9th November 2011, 11:58:AM

Re: The Italian Job

Also reporting the Agent to Agents local trading standards team would not do any harm either.

**Lynnzer** · 9th November 2011, 11:59:AM

Re: The Italian Job

Brilliant job. You're not just a Teaboy.......
Unless it's in a solicitors office.
The length problem is easily corroborated but bearing in mind the agent called and advised to go up a size due to small fitting would this become an implied acceptance even though we're talking 2 sizes instead of the one she agreed on?

Also if disputed in court as is more than likely, do the Italians have to have someone attend from the company. I can't see the agent being an out and out spokesperson/representative as she is a commission taker on sales so can't be impartial. I really can't see them wanting to do this, for expense purposes if nothing else.
And the Terms and Conditions in Italian? Are they enforceable?

**teaboy2** · 9th November 2011, 12:16:PM

Re: The Italian Job

Originally posted by Lynnzer View Post

Brilliant job. You're not just a Teaboy.......
Unless it's in a solicitors office.
The length problem is easily corroborated but bearing in mind the agent called and advised to go up a size due to small fitting would this become an implied acceptance even though we're talking 2 sizes instead of the one she agreed on?

Also if disputed in court as is more than likely, do the Italians have to have someone attend from the company. I can't see the agent being an out and out spokesperson/representative as she is a commission taker on sales so can't be impartial. I really can't see them wanting to do this, for expense purposes if nothing else.
And the Terms and Conditions in Italian? Are they enforceable?

If you were talking 2 sizes and she supplied different size to what you agreed then thats misrepresentation of the discription of goods, so you still have the right to reject the goods and seek a refund of any moneys paid in advance or have the invoice revoked.

They would need a solicitor to attend court and the Agent would likely be called as a witness as the onus is on them to prove that their was no breach of contract by them and that it was you in breach, which clearly will not be possible for them to prove. So it would be impossible to for them to prove, especially when you take into account that you have the right to reject goods upon inspection of them. As for the terms on the invoice being Intalian and their enforceability, well as i stated above, english contract law is clear that such terms and conditions must be in plain and intelligible English. There is no ifs or buts about that, thats the law.

So really the chance of them taking you to court is slim as the solicitor that has been in touch will also know this and is likely purely trying to get payment in the hope you are not aware of the law or your rights. If this did goto court it would be easy to defend. In fact we would probably get their claim struck out at pre trail hearing on the grounds above making it clear they have no reasonable prospect of success.

As for not just being a Teaboy, well all i can say is that the teaboy is the cute side of me where as the Tea-monster is the nasty side that kicks the arses and bites chunks out off, rogue employers and low life DCA's as well as solicitors that are trying it on lol.

**Lynnzer** · 9th November 2011, 14:06:PM

Re: The Italian Job

Sir,
In respect of the claim you are handling for XYZ Ltd I am informing you that this matter is in dispute with ourselves, as they well know.
We have had many contacts since receiving the goods ordered, telling them that the goods are outside of the contracted size and lengths as on the original order.

We have spoken to and emailed both the UK agent for the company, XYZ, and a previous company dealing with this matter on behalf of your client.

We have made repeated efforts via the UK agent and direct emails to XYZ Ltd to have the goods returned. I have never once received any acknowledgement from your client, and indeed emails to the UK agent went unanswered following a period of disputed facts and thorny responses from her. In any case, the UK agent is a commission agent not directly employed by your client and whose best interests may happen to fall on her keeping any commission she may have received for the original order.

Our grievance is such that the goods do not conform to the order placed. There were specific instructions that the goods ordered were to be of a particular length, and that we were told that they would be made that way. We have the actual instruction hand written by the UK agent on the order sheet.

Following the original order placement we received a telephone call from the UK agent advising us of a sizing problem with the garments ordered. She advised that they were “running on the small side” and suggested we size up accordingly. That means, for sake of clarity, that a size 10 lady would be unable to fit into a labelled size 10 garment but would need a size 12.
We were able to agree this based on the fact that a lot of ladies fall into a size smaller or larger than they actually think they are anyway. Actually most fall into a size larger than they think they are, women being women.

On delivery of the goods it was a little time until we had an opportunity to show them to a customer and have them tried on for suitability. It was immediately apparent that the length was not as agreed on the order, and that the sizes were still too small, in fact a size 10 lady would need a size 14 to fit her. Given the fact that a normal lady thinking she was a size 10 needed to go into a size 12 is difficult enough but to ask her to buy a size 14 would be nonsensical.

Also, we have an active internet sales operation and if we had to show these on that site we would be breaking the law if we advertised an outfit in a size 10 but then sent out a size 14 knowing only that size would fit a size 10 woman.

I have tried repeatedly to have them collected from the shop for not complying with the order placed. Even though there was a general acceptance that the sizing up of a single size would possibly be acceptable, we do not believe that this should extend itself to having to go 2 sizes up, and we believe that this doesn't constitute an acceptance of that fact.

Quite apart from that, the actual length is not in conformity to the order placed, and shown on the order sheet. This is easily substantiated by referring to the pictures of the said garments on your clients website and comparing them to the actual garments in our possession awaiting return.

We have a professional model working for us in the shop and she knows all too well how the fit and the length should be on her. They do not fit her, size for size.

If we consider other aspects of this situation we find that the Terms and Conditions of the sale are clearly set out on the order acknowledgement, in Italian. I believe this is a breach of our rights under English Contract Law which says that they must be in plain and intelligible English. As such I doubt whether they are enforceable in law and in any case they do not convey our contractual rights, nor your client's responsibilities to the extent that they can be understood.

We believe we have the right to return the goods, or have them collected, for a full credit, since they do not conform to the order placed and as such, since they neither fit due to the size and suffer from the required length issues, have therefore been sold by misrepresentation. To this end, a garment size ticket that shows a UK size 10 should fit a UK size 10 customer, and if it is supposed to be of a stated length then it must be so.

I quote directly from the Sale of Goods Act 1979. The relevant parts are in blue text and I have added my comments in brackets following each section in black text.

13 Sale by description.
(1)Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description. (the Sale by Description is a consequence of the UK agent calling and informing us of a size problem and advising us to size up, then in respect of the length of the garments since no actual garment of the finished length was able to be inspected it was therefore only as described.)

15A Modification of remedies for breach of condition in non-consumer cases.
(1) Where in the case of a contract of sale—
(a) the buyer would, apart from this subsection, have the right to reject goods by reason of a breach on the part of the seller of a term implied by section 13, 14 or 15 above, but
(b)the breach is so slight that it would be unreasonable for him to reject them,
then, if the buyer does not deal as consumer, the breach is not to be treated as a breach of condition but may be treated as a breach of warranty. (A Breach of Warranty has been created since the garments do not match the description on them in relation to the size on the ticket, even allowing for a general acceptance that a single size would possibly not have been any great cause for concern. In respect of a 2 size difference this amounts to something more significant and we cannot reasonably be expected to accept this situation. The length problem is something different. This was a contractual requirement as part of the order process and our rejection of the garments due to the failure of your client to follow this order request cannot be construed as being unreasonable).

35A Right of partial rejection.

(1)If the buyer—
(a)has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but
(b)accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods, he does not by accepting them lose his right to reject the rest.
(2)In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
(3)For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
(4)This section applies unless a contrary intention appears in, or is to be implied from, the contract. (In relation to (3) the goods are not in conformity with the contract therefore we have the right of rejection)

Since your client has resisted or refused the return of the garments, or indeed as is the case not even acknowledged our attempts to contact them for redress, as being unsatisfactory they are in breach of the Act themselves.

I now point to the fact that we know of other retailers who have suffered a similar problem. One of them, who in fact is a good friend of ours, had his order collected upon the instructions of your client and his invoice credited in full. This was due to exactly the same problems and he has indicated he will be more than willing to make a statement of fact to assist us, if so needed.

If you care to discuss this matter more fully with your client it may be easily resolved by them accepting a breach of warranty and having the goods collected for a credit to which we are entitled in English Law.

The failure of your client to respond to previous contacts cannot be construed as being useful to them if the matter should come to court but could be seen as repudiation of contract by them, which would mean they lose the right to payment as we will deem the contract as being discharged.

Please advise me on the outcome of your discussion with them so I can prepare for any litigation and appoint legal representation from our Trade Body if so needed.
Yours sincerely

Company Secretary

**teaboy2** · 9th November 2011, 14:22:PM

Re: The Italian Job

Originally posted by Lynnzer View Post

Try this for size. Is it correct? I can't find a reference or hyperlink to the Sale and Supply of Goods act 1974 so has it been amended or updated.
Letter to go out if it meets approval from the forum:
__________________________________________________ ______________
Sir,
In respect of the claim you are handling for XYZ Ltd I am informing you that this matter is in dispute with ourselves, as they well know.

We have had many contacts since receiving the goods ordered telling them that the goods are outside of the contracted size and lengths as on the original order.
We have spoken to and emailed both the UK agent for the company and a previous company dealing with this matter on behalf of your client.

We have made repeated efforts via the UK agent and direct emails to XX XXXX XXXX Ltd to have the goods returned. I have never once received any acknowledgement from your client, and indeed emails to the UK agent went unanswered following a period of disputed facts. In any case, the UK agent is a commission agent not directly employed by your client and whose best interests may happen to fall on her keeping any commission she may have received for the original order.

Our grievance is such that the goods do not conform to the order placed. There were specific instructions that the goods ordered were to be a particular length, and that we were told that they would be made that way. We have the actual instruction hand written by the UK agent on the order sheet.

Following the original order placement we received a telephone call from the UK agent advising us of a sizing problem with the garments ordered. She advised that they were “running on the small side” and suggested we size up accordingly. That means, for sake of clarity, that a size 10 lady would be unable to fit into a labelled size 10 garment but would need a size 12.

We were able to agree this based on the fact that a lot of ladies fall into a size smaller of larger than they actually think they are anyway. Actually most fall into a size larger than they think they are, women being women.

On delivery of the goods it was a little time until we had an opportunity to show them to a customer and have them tried on for suitability. It was immediately apparent that the length was not as agreed on the order, and that the sizes were still too small, in fact a size 10 lady would need a size 14 to fit her. Given the fact that a normal lady thinking she was a size 10 needed to go into a size 12 is difficult enough but to ask her to buy a size 14 would be nonsensical. Also, we have an active internet sales operation and if we had to show these on that site we would be breaking the law if we advertised an outfit in a size 10 but then sent out a size 14 knowing only that size would fit a size 10 woman.

I have tried repeatedly to have them collected from the shop as not complying with the order placed. Even though there was a general acceptance that the sizing up of a single size would possibly be acceptable, we do not believe that this should extend itself to having to go 2 sizes up, and we believe that this doesn't constitute an acceptance of that fact.

Quite apart from that, the actual length is not in conformity to the order placed, and shown on the order sheet. This is easily substantiated by referring to the pictures of the said garments on your clients website and comparing them to the actual garments in our possession awaiting return. We have a professional model working for us in the shop and she knows all to well how the fit and the length should be on her. They do not fit her, size for size.
If we consider other aspects of this situation we find that the Terms and Conditions of the sale are clearly set out on the order acknowledgement, in Italian.
I believe this is a breach of our rights under English Contract Law which says that they must be in plain and intelligible English. As such I doubt whether they are enforceable in law.

We believe we have the right to return the goods, or have them collected, for a full credit, since they do not conform to the order placed and as such, since they neither fit due to the size and length issues, have been sold by misrepresentation. To this end, a garment size ticket that shows a UK size 10 should fit a UK size 10 customer, which it does not.

I quote directly from the Sales of Goods Act 1979. The relevant parts are in blue text and I have added my comments in brackets following each section in black text.

13 Sale by description.
(1)Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description. (the Sale by Description is a consequence of the UK agent calling and informing us of a size problem and advising us to size up, also in respect of the length of the garments since no actual garment of the finished length was able to be inspected)

15A Modification of remedies for breach of condition in non-consumer cases.
(1) Where in the case of a contract of sale—
(a) the buyer would, apart from this subsection, have the right to reject goods by reason of a breach on the part of the seller of a term implied by section 13, 14 or 15 above, but
(b)the breach is so slight that it would be unreasonable for him to reject them,
then, if the buyer does not deal as consumer, the breach is not to be treated as a breach of condition but may be treated as a breach of warranty. (a Breach of Warranty has been created since the garments do not match the description on them in relation to the size on the ticket, even allowing for a general acceptance that a single size would possibly not have been any great cause for concern. In respect of a 2 size difference this amounts to something more significant and we cannot reasonably be expected to accept this situation. The length problem is something different. This was a contractual requirement as part of the order process and failure of your client to follow this cannot be construed as being unreasonable by ourselves).

35A Right of partial rejection.

(1)If the buyer—
(a)has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but
(b)accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods, he does not by accepting them lose his right to reject the rest.
(2)In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
(3)For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
(4)This section applies unless a contrary intention appears in, or is to be implied from, the contract. (In relation to (3) the goods are not in conformity with the contract therefore we have the right of rejection)

Since your client has resisted or refused the return of the garments as being unsatisfactory they are in breach of the Act themselves.

I now point to the fact that we know of other retailers who have suffered a similar problem. One of them, who in fact is a good friend of ours, had his order collected upon the instructions of your client and his invoice credited in full. This was due to exactly the same problems.

If you care to discuss this more fully with your client it may be easily resolved by them accepting a breach of warranty and having the goods collected for a credit to which we are entitled in English Law.
The failure of your client to respond to previous contacts cannot be construed as useful to them if the matter should come to court, but could be seen as repudiation of contract by you cleint, which would mean they lose the right to payment as we will deem the contract as being discharged.
Please advise me on the outcome of your discussion with them so I can prepare for any litigation and appoint legal representation from our Trade Body if so needed.
Yours sincerely

Myself and Me

Company Secretary

Hi Lynnzer

It looks good to me, but i couldn't resist adding the bit highlighted in red just to give you a stronger standing lol.

Also i would suggest you remove the mention of the companies name on the forum here (though certainly keep it in your letter to the solicitor).

Heres a link to the sales of goods act 1979 - Sale of Goods Act 1979 as far as am aware there is not admendments waiting to be made so it is up to date with all previous admendments made since 1979.

**Lynnzer** · 9th November 2011, 16:09:PM

Re: The Italian Job

Whole letter now compiled and sent. I have simply amended the earlier one to show the content I've sent rather than string loads of quotes into a bloody great big reply.
Thanks for your help Teaboy.
It's a waiting game now. Will post back when I get a response.

**teaboy2** · 9th November 2011, 16:57:PM

Re: The Italian Job

No problem Lynnzer, will keep an eye out for any updates you post, but try keep them in this thread though when you do give us an update instead of starting a new thread like some posters do lol.

**Judge mental** · 9th November 2011, 21:26:PM

Re: The Italian Job

Hi

I was just in the process of typing up the sections 13,14 and 15 .... but you managed to find it.

Also The Unfair Contract Terms Act 1977 apply to business to business contracts.

you might want to consider returning the goods, include a letter quoting the invoice number and clearly rejecting the goods as they are not what was ordered. Put the letter through an online translator and include a copy in italian, keep a copy of both letters. Also include an invoice for the cost, (unless the T&C's make a different provision for returns, it might be worth typing them into an online translator).

Send the goods 'signed for upon receipt' this can be done for any international mail or parcel, obtain and keep a copy of the signed receipt.

It might work against you if matters end up in a court that you still have posession of the goods.
Hope it helps

**Lynnzer** · 9th November 2011, 22:03:PM

Re: The Italian Job

Originally posted by Judge mental View Post

Hi

I was just in the process of typing up the sections 13,14 and 15 .... but you managed to find it.

Also The Unfair Contract Terms Act 1977 apply to business to business contracts.

you might want to consider returning the goods, include a letter quoting the invoice number and clearly rejecting the goods as they are not what was ordered. Put the letter through an online translator and include a copy in italian, keep a copy of both letters. Also include an invoice for the cost, (unless the T&C's make a different provision for returns, it might be worth typing them into an online translator).

Send the goods 'signed for upon receipt' this can be done for any international mail or parcel, obtain and keep a copy of the signed receipt.

It might work against you if matters end up in a court that you still have posession of the goods.
Hope it helps

We did consider returning the garments but the problem is that they can refuse to accept them so we would then find ourselves with no signature for the goods and inevitably would have to pay to have them returned to us.
This happened with another company in London a few years ago. Same scenario. Poor fit. In fact we ended up throwing all the order in the recycling bin at a loss of over £5K.
Not long afterwards the company went out of business. It was wound up as the joint owner found his other half in bed with the bank manager. Maybe trying to negotiate an overdraft........

I'll keep a return option in mind though. It may be something we can use if we try to return it then have it refused.
Thanks for your input on this guys. You've been really helpful. And still not a word of assistance from "the other place".

**teaboy2** · 10th November 2011, 02:35:AM

Re: The Italian Job

Originally posted by Lynnzer View Post

Not long afterwards the company went out of business. It was wound up as the joint owner found his other half in bed with the bank manager. Maybe trying to negotiate an overdraft........

I'll keep a return option in mind though. It may be something we can use if we try to return it then have it refused.
Thanks for your input on this guys. You've been really helpful. And still not a word of assistance from "the other place".

Don't expect much help on CAG in regards to legal issues that are non debt related, all the best advisors on such legal issues are now here on Legal beagles after falling out with CAG or not liking the way they were heading. Myself included.

Anyway, i bet the other companys other half only went with the bank manager because the bank manager knew the right dress size, and she was fed up with her husband getting her dress size wrong lol.

**Lynnzer** · 10th November 2011, 08:13:AM

Re: The Italian Job

Originally posted by teaboy2 View Post

Don't expect much help on CAG in regards to legal issues that are non debt related, all the best advisors on such legal issues are now here on Legal beagles after falling out with CAG or not liking the way they were heading. Myself included.

Anyway, i bet the other companys other half only went with the bank manager because the bank manager knew the right dress size, and she was fed up with her husband getting her dress size wrong lol.

She was the designer........ Belinda Chng, and the label was named after her.
She had designs on other things too by the looks of it.

**Lynnzer** · 12th November 2011, 11:24:AM

Re: The Italian Job

Bearing in mind that the letter sent to me was dated the 7th November, although I didn't receive it until a couple of days later, can this be a proper notice of intention?
By saying that I have 7 days to make payment without specifying a start date or end date for this 7 days, is this a flawed notice?
I ask that question as the 7 days would expire from the 7th November on Monday 14. There isn't another working day from now until then for them to answer my response to them so if the 7th was the date of service (which I sincerely doubt) could just go straight into legal action.
Do they have a right to overlook my response or do they have an obligation to acknowledge it and answer it?

**CleverClogs** · 12th November 2011, 16:24:PM

Re: The Italian Job

Originally posted by Lynnzer View Post

This happened with another company in London a few years ago. Same scenario. Poor fit. In fact we ended up throwing all the order in the recycling bin at a loss of over £5K.
Not long afterwards the company went out of business. It was wound up as the joint owner found his other half in bed with the bank manager. Maybe trying to negotiate an overdraft.

Or just doing to his wife what head office does to its customers?

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