It is not often that the little guys like you and I are able to win a battle of words with the legal department of a large multinational. But I can claim such a victory with HTC and Tesco Mobile.
My HTC Desire C smartphone stopped working one night while sat by my bedstand. I sent it back to my network (Tesco Mobile) for an in-warranty repair. They stated that since the screen was cracked (which, BTW, happened months before the phone died and is in my option entirely unrelated) the manufacturer’s warranty would be void. I called up to dispute this and Tesco were very rude, they would not even entertain the idea that the warranty is still valid. They said that they had never seen the warranty documents. They had essentially and incorrectly assumed that the warranty was void without evening reading it. I say that Tesco Mobile can go screw themselves.
I had already inspected the warranty and the wording was such that to the casual bystander it would seem that a crack would void the warranty, but actually I was able to look a little closer and see that the wording did not, actually, imply this.
The wording of the relevant section is:
7. This limited warranty shall not apply if the defect was caused though any of the following:
c) use other than in accordance with the user manual, rough handling, ……
This limited warranty does not cover… cracks… on the LCD screen.
Tesco advised me (again rudely) to contact HTC directly. It was pretty difficult to get through the many layers of outer wrapping and reach the people who matter, but I persevered. We debated the warranty and HTC gave me the same guff about the crack that Tesaco had, although at least HTC had actually read their own warranty.
One might think that because it says that cracks are excluded that Tesco and HTC were right to say that the entire warranty was void. But this is NOT what the warranty says. It says that cracks are not covered. It does not say that a crack voids the whole warranty.
So I stated that I did not care about the crack, and that I wanted to claim for the power failure fault. HTC tried to insert additional terms into their warranty, stating that one cannot pick and choose components to be repaired, and that they’d have to repair both the power failure fault and the crack. I reminded them that the warranty forms a contract and it is against common law to insert additional terms into a contract.
HTC went on to re-iterate the wording of their warranty. They elaborated as follows:
The first statement of “This limited warranty shall not apply if the defect was caused through any of the following:” states that if there is a defect on the device caused by any of the following things (which a broken screen is part of) then the warranty is invalid. This does not state that if the component that you would like to have repaired is defect through any of the following. The warranty does not allow for you to pick and choose which defect you would the warranty to apply to. If there is any defect on the device which is caused through these issues, the warranty no longer applies to it and the repair work cannot be carried out free of charge.
My reply was:
It is interesting that you use the word “any” in your explanation several times. Your explanation seems to point to the spirit of what was intended by the warranty, however that is not what was written in the letter of the warranty and it is not what you are bound by.
Section 7 of the warranty does not state that the warranty shall not apply if ANY defect has been caused by one of the excluded actions. It states that the warranty is invalid if THE defect (the defect being claimed) is caused by one of the excluded actions. The key is the first occurrence of the word “the” in the sentence: “THIS LIMITED WARRANTY SHALL NOT APPLY IF THE DEFECT WAS CAUSED THROUGH ANY OF THE FOLLOWING”
If the intention was to void the entire warranty in the event that any single defect has been caused by one of the excluded actions then the warranty should have stated, “THIS LIMITED WARRANTY SHALL NOT APPLY IF A DEFECT WAS CAUSED THROUGH ANY OF THE FOLLOWING”
I believe that the current wording is unambiguously in my favour. However if there is any ambiguity about whether it is any defect or the defect (being claimed) which voids the warranty then the principle of contra proferentem finds in my favour. It holds that the warranty is not void.
There is no such clause that states that the entire warranty is void if ANY defect is caused by one of the excluded actions. If you are now trying to add an additional term stating this, then you are indeed breaking common law.
Again – please honour the warranty.
Finally HTC’s reply was:
I’m sorry if you have a feeling that we are breaking a common law, because we are not and have no intentions of doing so.
Unfortunately, this is not the case. When the warranty references ‘the’, it does not mean the defect that you are claiming for. This is a cover of the whole device and I agree, it could be considered rather ambiguous diction which is something that I will pass onto the relevant department. We apologise for any confusion.
In this instance I’m happy to offer to repair your device In Warranty. This is not due to warranty validation but think it as a goodwill gesture.
Well, this is a victory of sorts. They are repairing the phone even though they will not admit that I was right.
So in conclusion:
- Screw Tesco Mobile
- Do not be afraid to fight when companies try to weasel out of obligations, try to add terms, or try to bend contracts.