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Consumer Sourcebook

Preface | User's Guide | Table of Contents | Print Sourcebook Adobe Acrobat Reader Symbol

Defective Goods

Many consumers assume that they have the legal right to return merchandise to a seller for a full refund shortly after buying it. Generally speaking, that assumption is not true. However, some important exceptions to this rule do exist. Furthermore, consumers often have important warranty rights and may "reject" or "revoke acceptance" of defective merchandise under some circumstances. You may also want to refer to the section on Warranties for additional information.

The Law

Under New Hampshire law, your right to return merchandise is usually created by a statute, contract, or store policy. If no statute, contract, or store policy creates that right, then a buyer cannot typically return the merchandise to the seller for a full refund.

Remedies do exist for New Hampshire consumers who need to return merchandise that is defective in some way. The Uniform Commercial Code (UCC) has a somewhat complicated set of rules that govern "acceptance," "rejection," and "revocation of acceptance" of goods. (For more information about the UCC, refer to Warranties) These rights often include a right to a reimbursement of any payments made, resulting in a remedy that looks like a "refund" to the consumer. Note, however, that slight changes in facts may completely change an outcome under the UCC. Several of the more common situations are illustrated below.

Example: Joyce Byer goes to the central New Hampshire outlet for StupendoMart and buys an 8" aluminum skillet. StupendoMart has a sign over its customer service desk that says "Absolutely no returns." Ms. Byer takes the pan home and immediately cooks up her favorite omelet in it. She decides that she really needs a 12" skillet which is only sold by StupendoMart's competitor, Hugestor. Ms. Byer does not have a legal right under NH law to return the pan for a full refund.

Rejection of a Good

A rejection of a good happens when a buyer purchases a good (or merchandise) and finds out that it fails to conform to the sales contract, including all express or implied warranties. You should note that according to the UCC, rejection occurs before the buyer actually "accepts" the good.

Accepting a Good Then Revoking the Acceptance

Ordinarily, a consumer goes to the store, inspects a representative sample of a good, selects that sample or a packaged item of the same kind, pays for the good, takes it out of the store and uses it. Under the UCC, the buyer's "acceptance" would usually be found to have occurred when the buyer walked out of the store with the good.

Example: Joyce Byer goes to the central NH outlet for StupendoMart and selects an 8" aluminum skillet from the shelf. The salesclerk hands her a box that says "8 Inch Scorcheze Aluminum SauceChef Skillet." After paying for the pan and while standing around in the store waiting for her friend to finish shopping, Ms. Byer notices that the box contains a 10" skillet, not an 8" one. StupendoMart has a sign over its customer service desk that states "Absolutely no returns." Ms. Byer probably has a right to reject the 10" skillet and demand a refund.

But what happens when a buyer "accepts" the merchandise and later discovers that it fails to meet the sales contract and warranty requirements? The buyer may be able to revoke acceptance of the merchandise, and, in effect, secure a "refund." Under the UCC, a buyer may revoke acceptance of merchandise that fails to satisfy sales contract requirements if:

  • The buyer accepted the merchandise before discovering the defect, and the defect was not readily apparent or easily discovered, or the seller assured the buyer that there was no defect
  • The buyer accepted the merchandise knowing it had a defect and reasonably assumed that the defect would be cured, yet the defect has not been cured

In either case, the consumer's revocation of acceptance must satisfy at least these preconditions:

  • The nonconformity of the good "substantially impairs" its value
  • The buyer notifies the seller within a reasonable time, before the good deteriorates substantially" due to causes unrelated to the defect related to the revocation
  • The buyer exercises the proper degree of care to protect the seller's interest in the good

Example: Joyce Byer goes to StupendoMart and selects an 8" aluminum skillet from the shelf. The salesclerk hands her a box that says "8 Inch Scorcheze Aluminum SauceChef Skillet." StupendoMart has a sign over its customer service desk that states "Absolutely no returns." Ms. Byer cannot inspect the pan in the store because the box is securely taped and sealed to prevent shoplifting. When she gets home and opens the box, she discovers that the box contains a 10" skillet, not an 8" one. Ms. Byer already has a 10" skillet and a second one is of no use to her. Ms. Byer probably has a right to revoke her acceptance of the 10" skillet and demand a refund if she does not use the pan, repacks it, and takes it back to the store within a few days.

Whenever words like "substantially impair," "reasonable time," and "reasonably assumed" appear in a statute, you may find yourself arguing with a seller over their meaning. As you might expect, courts have often made the final decision as to whether the facts of a case justify finding that something was "reasonable" or "substantial." Fortunately for consumers, many New Hampshire retailers have reasonable return policies when goods are found to be defective. Indeed, retailers will often allow returns even if the product is not defective.

Several state and federal laws give consumers, under specific circumstances, an unequivocal right to cancel a contract within a certain period of time.

Door-To-Door-Sales

One of the most important exceptions is for door-to-door sales. (For a more extensive explanation, refer to the section on Door-To-Door and Home Solicitation Sales) Under both federal regulations and New Hampshire law, a person who buys any good or service at a place other than the seller's normal place of business has the right to return the good or service for a full refund within three business days after the date of sale.

Example: Joyce Byer buys an 8" aluminum skillet from Barry Truly, a traveling sales consultant for Pots Unlimited. Truly leaves the skillet with Joyce who immediately cooks her favorite omelet in it. She decides that she really doesn't like the color of the pan, and within 3 business days gives Pots Unlimited written notice that she demands a full refund from Truly, after washing and repacking the skillet (assume that it does not have any mars or stains on it). Joyce has a legal right under NH law to return the pan for a full refund.

In addition, if you enter into a "contract for future performance" through a door-to-door sales transaction, you have a right to rescind (cancel) the contract under both New Hampshire and federal laws.

Example: Joyce Byer is approached by a door-to-door encyclopedia salesperson. She pays for Volume 1 of the "Encyclopedia of Everything," and signs a contract to accept Volume 1 at the time of the sale and continue receiving Volumes 2-40 of the series, one each month, at a price of $40 per volume. Joyce has the legal right to return Volume 1 within 3 business days for a full refund and to notify the encyclopedia company that she cancels the contract.

Other Types Of Transactions

Other statutes provide consumers with a right to cancel certain types of transactions without penalty. For more information, refer to Condominiums and Timeshares and Home Equity Loans and Second Mortgages. For more information about some frauds that consumers experience from scam artists at their doors, refer to the section entitled Schemes, Swindles and Other Scams.

Unsafe Goods

The marketing and sale of unsafe goods probably violates New Hampshire's Consumer Protection Act. However, it usually takes scientists, engineers and other technical persons to establish that a product is "unsafe." If you believe that a product you own or use is unsafe, we believe that you should immediately stop using it and contact the Consumer Product Safety Commission (CPSC), the manufacturer, and the New Hampshire Consumer Protection and Antitrust Bureau. The "hotline" number for CPSC is listed at the end of this section.

Points To Remember

  • Before making a purchase, try to inspect the condition of the actual item you are buying.
  • You should check to see if the store has a return policy posted. If the policy is not posted, inquire about it at the customer service department.
  • For door-to-door sales transactions, keep in mind that you have three business days from the date of sale to return a good or service for a full refund.
  • Remember that under certain circumstances, you have the right to reject or revoke acceptance of a good.

Where To Go If You Have A Problem

If you have trouble returning a defective item, contact the NH Consumer Protection and Antitrust Bureau:

NH Consumer Protection and Antitrust Bureau
33 Capitol Street
Concord, NH 03301-6397
603-271-3641

The Better Business Bureau of New Hampshire may also be able to assist in negotiating the return or replacement of defective goods:

Better Business Bureau
25 Hall Street
Concord, NH 03301
603-224-1991, 603-228-3789, or 603-228-3844

If you think the defective good poses a safety hazard, contact the US Consumer Product Safety Commission.

US Consumer Product Safety Commission (CPSC)
Washington, DC 20207
1-800-638-2772 (toll free)
E-mail: info@cpsc.gov

If you think the defective good poses a safety hazard, contact the US Consumer Product Safety Commission:

US Consumer Product Safety Commission (CPSC)
4330 East-West Highway
Bethesda, MD 20814-4408
1-800-638-2772 (toll free)
E-mail: info@cpsc.gov

You may also want to contact the manufacturer of the product with which you are having a problem and ask about any warranty service or exchange policies. Another, possibly more expedient, procedure would be to negotiate with the manager of the store where you purchased the product to see what can be done in your situation. For pointers on how to negotiate a settlement, refer to the section entitled Remedies: Effective Negotiation. For help in writing a letter of complaint or inquiry to a manufacturer, refer to Remedies: Writing A Complaint Letter.

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New Hampshire Department of Justice | 33 Capitol Street | Concord, NH | 03301
Telephone: 603-271-3658