Help please! I work for a furniture manufacturer. We offer a 10 year warranty on upholstered furniture. We were recently approached by a customer seeking a refund of the full purchase price due to a fault, but it transpires he obtained the sofa for free on Gumtree. The seller mentioned when selling that her dogs and kids had destroyed it hence giving it away. It was then transported interstate. We cannot reasonably conclude that the damage is a manufacturing fault but initially the customer was offered a repair under warranty prior to finding out the circumstances under which he acquired it. He claims ACL still applies as the item is a gift. The sofa is 6 years old and the condition was poor when purchasing as noted in the Gumtree ad. Does this still fall under a private sale and therefore the laws do not apply? Or does he receive the same rights as the gift giver? I have read a lot of resources and cannot be sure.
The actual lawyers here are limited to generalities in their comments.
So, you may not end up any more sure than you are at present.
With that being said...
Going only by what you have said here, missing facts missing,
and with all the unstated ifs, buts, and maybes, unlesses, and exceptions not allowed for,
this doesn't look like a transaction to which the ACL applies.
That's because there's no "trade or commerce" relationship between you and them.
That is, he is not, and has never been, your customer.
What he's trying to do is get something comparable to
the "still under new car warranty" thing
that you sometimes see when someone is trying to sell a used car.
He's mistaken.
Also, the onus will be on him to show that it was a gift.
Among other things, he would need to show there was some kind of pre-existing relationship between him and the person he got it from, such that the one giving the other a gift - of this kind - was reasonable and plausible.
That's less likely to be possible, given that prior to meeting through Gumtree, the players were unknown to each other.
Further - because you have yourself saved all the Gumtree content
(you have saved all the Gumtree content, right...?)
it may well be possible to show that it's more likely than not
that the damage was both pre-existing, and in any event, not warrantable.
Further, have a look at the terms and conditions of the warranty.
You may find that the warranty only extends to the original retail customer anyway.
Lastly, reply to any threats of legal action with "Ok. Go on then. "
Thank you so much for your reply. The actual Gumtree ad is no longer available, I can only see a preview of it on Google where I can see some of the text. However, we also discovered that the original purchaser came to us at the end of 2023 requesting a reupholstery quote, citing the fact that her dogs and children had destroyed the fabric. This we do have full record of. We state our warranties are non transferable but he is citing ACL and the fact that the item has a fault so he therefore entitled to a refund. My concerns are mainly around the definition of a gift and whether obtaining something for free from gumtree was enough to satisfy the definition. I would think surely this wouldn’t be the case as people give away damaged items online all the time and it would be a nightmare for retailers if all of the recipients were then able to claim refunds of the purchase price!
The bare fact that it changed hands for zero dollars does not, alone and of itself, make it a gift.
At least, not the kind of gift that would give rise to a third party's obligations under the ACL.
The fact that the two parties would not have been in touch, but for Gumtree,
also tends to support the proposition that this is not a gift of that kind.
Decline any request that comes to you in writing.
Respond to any threats of action with
At least, not the kind of gift that would give rise to a third party's obligations under the ACL.
The fact that the two parties would not have been in touch, but for Gumtree,
also tends to support the proposition that this is not a gift of that kind.
Decline any request that comes to you in writing.
Respond to any threats of action with
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