I Shouldn't Have to Pay for This! A Consumer's Guide to your Rights

by Nora Dunn on 19 December 2007 comments
Photo: Jan Tik

If you buy something that stops working immediately and the seller refuses to refund your money, do you still have to pay for it?

If a door-to-door salesperson lures you in with their wares, only to leave you with buyer's remorse days later, can you cancel the contract?

If you receive merchandise in the mail which you didn't order, and shortly thereafter receive a bill for it, do you have to pay for it?

In many of these cases, the answer is no. Here are some instances where you may have a legitimate case against merchants:

Breach of Warranty

There are two types of warranties worth mentioning here: Implied Warranties and Express Warranties.

Express Warranty

This is a promise (or warranty) expressed directly by the manufacturer or seller. Although the word "warranty" or "guarantee" is not necessary in the language, there is nevertheless a promise of sorts being made. "If xyz fails to operate within two years of purchase, we promise to repair or replace it free of charge", or "we guarantee this table against all defects for one full year from purchase" are examples of express warranties.

Implied Warranty

Implied warranties are a little more in the grey zone. No specific language is made by the seller guaranteeing the item, but such warranties are, well, implied.

For example, if you buy a refrigerator, there is an implied warranty that it will cool your food - to at least 45 degrees or less.

Enforcing Warranties

In most cases, simply bringing the defect to the attention of the seller or manufacturer is enough to have the item repaired or replaced. If they don't cooperate however, you have three options: Sue the manufacturer or seller, resolve the dispute through arbitration, or stop making payments on the item.

Suing

In most cases you have to sue within a certain time frame of purchasing the item, usually four years or so. You will also have to prove that you notified the seller of the problem and they refused to help.

Arbitration

Better Business Bureau has a mediation program that may assist you in your search for arbitration. In some cases you must go through the arbitration process before you can sue.

Stop Making Payments

Please be very careful in expediting this option: if you borrowed money to pay for the item, the lender may not care if it works or not - they want their money! Your credit rating may be at stake, in addition to interest charges and penalties being levied. In fact, the lender can sue YOU for ceasing your payments!

The problem must be substantial and you must have gone through all the proper channels of trying to have the item repaired, given the seller a reasonable chance to repair the time under warranty, and you cannot have abused or damaged the product. Even so: buyer beware!

Your Car Is A Lemon

I cover this area in another article, so I won't go into it in much detail here.

Suffice it to say that beyond the standard warranty programs, there can be "secret warranties" available to fix your problems, as well as lemon laws in most states to help you navigate your way through arbitration with the seller of a crappy car.

Fraud

There are laws against unfair and deceptive behaviour on the part of sellers, including the following:

  • Contracts that contain pages upon pages of complicated legalese masking an unfair term.
  • High pressure sales tactics.
  • Exploiting groups like children, the elderly, or mentally or physically disabled people.

Each state is different, so you need to look up the Unfair and Deceptive Acts and Practices (UDAP) laws for your area to know how best to proceed in these instances.

In many cases, you'll end up in small claims court to see any relief from fraud, and if you are in a financial pickle with collection agencies or debtors, simply not paying the debt is (again) a risky strategy.

If you feel that you are a victim of fraud, you may find relief from the National Fraud Information Centre, who provides information on how best to proceed and assistance with complaints.

Cancelling Contracts

Most contracts are binding from the time you sign them. (That's why you signed)! But they also generally have a "cooling-off period" built into them that allows you to get out of the contract using proper measures within three days of signing.

Door to Door Sales Contracts

The Federal Trade Commission gives you a three day cooling-off period to cancel such contracts, in the following cases:

  • The door-to-door contract is for $25 or more.
  • Contracts made elsewhere like at a restaurant, hotel, or friend's place also qualify.

Sales made over the phone, or at auctions or fairs are generally exempt from this cooling off period. But you may still have some relief from these types of sales, so it's worth your time and energy to investigate.

 

After cancelling, the seller is obligated to refund your money within 10 business days, and they must pick up the items (or reimburse your cost of shipping them back) within 20 days.

Under state law, you may be allowed to cancel the following contracts which are not covered under other jurisdictions:

  • Timeshares
  • Health club memberships
  • Dating services
  • Credit repair services
  • Dance lessons (although my gosh - why would you cancel dancing lessons)!
  • Camping memberships

 

Cancelling Contracts

Although a phone call (with proper detailed records of who you spoke to and the nature of the conversation) is a legitimate way to start, you must get something in writing! Whether it is a cancellation form provided by the seller, or a formal letter written and signed by yourself confirming the conversations, make sure you retain copies of everything sent and received.

And although in this day and age email and faxes are quick and easy, it is best to send any documentation that may end up as legal evidence by good ol' snail mail.

Contract Defences

Cooling-off period or not, you may have a legitimate case for cancelling a contract under the following conditions:

  • Incapacity - If you can prove you didn’t have the mental capacity to enter into a contract, you might be off the hook.
  • Minors - Minors aren't able to enter into binding contracts in most cases.
  • Duress - Being forcibly coerced into signing a contract is grounds for nullification.
  • Fraudulent Misrepresentation - Being lied to about critical contract terms when you had to rely on their information to make your decision is illegal.
  • Unconscionability - If the bargaining process was extremely unfair or the contract terms unbearably unbelievable, it's unconscionable.

You Didn't Order It!

If you receive an item and subsequent bills for something you didn't order, you certainly don't owe them for it! It is legally considered a gift. (But beware: you may have filled out some sweepstakes form or ticked a box on a subscription request that indicated you did in fact order the item, so read the fine print).

In order to remedy a legitimate mail-order dispute, simply write the company and state that you did not order the item and that you consider it a gift and are not obligated to pay for it. In order to remedy a legitimate mail-order dispute, simply write the company and state that you did not order the item and that you consider it a gift and are not obligated to pay for it. You can also insist on the seller providing proof of your ordering the item if the hassles continue.

Layaway Plans

The beauty of a layaway plan is that you haven't purchased the item - you are simply putting it on hold for a certain period of time. So when push comes to shove, you don't have to pay for it!

If you are paying on an instalment program where the seller keeps the item as you pay it off piecemeal, then you will likely have a written layaway agreement, which you should read thoroughly to determine your rights if you no longer want the item. At worst, the seller may have the right to retain a service fee of sorts before refunding the rest of your money.

In all cases, be careful about simply refusing to pay any debts accrued for the above items. Your lender usually doesn't care about whether or not you were coerced into the deal or not: they want their money! In some cases, you can contact your lender and describe the situation to them (again recording all details and confirming with a written follow-up letter), and they may allow you to suspend payments until the dispute is settled.

Some Resources to aid your Crime Fighting Plight:

Federal Trade Commission

Direct Marketing Association: For complaints about mail-order companies and direct marketers.

United States Postal Inspection Service (USPIS): To address fraudulent promotions offered by mail.

National Fraud Information Center

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