Cycles Mercier poor quality and bad customer service

[Sandy]

Dans le message de news:[email protected],
Rico X. Partay <[email protected]> a réfléchi, et puis a déclaré :
> Mike Jacoubowsky seems to contradict himself in two
> consecutive paragraphs:
>
>> The "implied [warranty] of [merchantability]" which
>> *may* (but does not always) create a contract issue
>> between buyer and seller is not, repeat, not not not not not
>> in any way related to a warranty that exists
>> between manufacturer and seller....
>
>> .... That's not to say that a
>> retailer doesn't have some responsibility to back up the
>> product they sell, but there have to be (and are in fact)
>> limits.
>
>
> Obviously the two contracts -- retailer/end-customer and
> retailer/manufacturer -- are are are are are are related in
> some way, at least in so far as it is the same product and
> therefore merchantability factors are essentially the same in
> both transactions. It's just that there are, as you say,
> limits in each context, and those limits can be different in
> the two contexts, even wrt the same product.

I don't know if this will simplify it, but :

There are express warranties and there are implied warranties.
Implied warranties are seldom capable of being avoided by the seller, even
with a release after a disclaimer.
Express warranties are extended by the guarantor to the parties downstream,
with terms that may be valid or not, and which may attempt to avoid implied
warranties.

Even simpler, when you buy your bike, or parts, ask the guy who is selling
them to you what the warranties are, what is excluded (maybe), and whom you
turn to in order to get satisfaction if there is a warranty claim. Common
sense will give you a hint as to whether you want to deal with the seller,
or purchase the product.

On the other hand, litigation (in cases where there is a severe warranty
claim, such as personal injury arising from a product defect) will find
every part of the manufacturing and distributing chain getting to play a
part. That's usually because all these parties are insured, and the
insurers always have the right to direct the litigation, unless the insured
has a reasonable objection, or does not want to avail himself of the
insurance.

Not simpler, I guess, but I hope this helps. A publicly good reputation is
the best thing any seller can offer.
--
Les faits relatés ici ne sont que pure fiction, et ne sauraient être
utilisés ou rapprochés d'une situation réelle existant ou ayant
existée

 

[Rico X. Partay]

Sandy wrote:
> Rico X. Partay:
>> Mike seems to contradict himself in two
>> consecutive paragraphs...

> ...There are express warranties and there are
> implied warranties...

Indeed there are.

> ...litigation (in cases where there is a
> severe warranty claim, such as personal injury arising
> from a product defect) will find every part of the
> manufacturing and distributing chain getting to play a
> part...

This illustrates my point. One result of this fact is that
the assertion that the warranties at different points in the
distribution chain have nothing to do with one another simply
isn't correct.

 

[Mike Jacoubowsky]

> Mike Jacoubowsky seems to contradict himself in two consecutive
> paragraphs:
>
>> The "implied [warranty] of [merchantability]" which
>> *may* (but does not always) create a contract issue
>> between buyer and seller is not, repeat, not not not not not in any way
>> related to a warranty that exists
>> between manufacturer and seller....
>
>> .... That's not to say that a
>> retailer doesn't have some responsibility to back up the
>> product they sell, but there have to be (and are in fact)
>> limits.
>
>
> Obviously the two contracts -- retailer/end-customer and
> retailer/manufacturer -- are are are are are are related in some way, at
> least in so far as it is the same product and therefore merchantability
> factors are essentially the same in both transactions. It's just that
> there are, as you say, limits in each context, and those limits can be
> different in the two contexts, even wrt the same product.

No contradiction whatsoever. My point was that a retailer *may* choose to
extend their own umbrella of coverage over a product in the event a warranty
issue arises. The retailer is not legally obligated to do so. But the
retailer may (perhaps should) feel a moral or ethical obligation to take
care of the customer as best they can.

--Mike Jacoubowsky
Chain Reaction Bicycles
www.ChainReaction.com
Redwood City & Los Altos, CA USA

"Rico X. Partay" <[email protected]> wrote in message
news:[email protected]...
> Mike Jacoubowsky seems to contradict himself in two consecutive
> paragraphs:
>
>> The "implied [warranty] of [merchantability]" which
>> *may* (but does not always) create a contract issue
>> between buyer and seller is not, repeat, not not not not not in any way
>> related to a warranty that exists
>> between manufacturer and seller....
>
>> .... That's not to say that a
>> retailer doesn't have some responsibility to back up the
>> product they sell, but there have to be (and are in fact)
>> limits.
>
>
> Obviously the two contracts -- retailer/end-customer and
> retailer/manufacturer -- are are are are are are related in some way, at
> least in so far as it is the same product and therefore merchantability
> factors are essentially the same in both transactions. It's just that
> there are, as you say, limits in each context, and those limits can be
> different in the two contexts, even wrt the same product.
>
>

 

[Rico X. Partay]

Mike Jacoubowsky wrote:

>>> The "implied [warranty] of [merchantability]" which
>>> *may* (but does not always) create a contract issue
>>> between buyer and seller is not, repeat, not not not
>>> not not in any way related to a warranty that exists
>>> between manufacturer and seller....

> No contradiction whatsoever. My point was that a retailer
> *may* choose to extend their own umbrella of coverage
> over a product in the event a warranty issue arises. The
> retailer is not legally obligated to do so. But the
> retailer may (perhaps should) feel a moral or ethical
> obligation to take care of the customer as best they can.


One more example of why the "not not not not not in any
way related" statement is incorrect (along with at least two
others posted here).

 

[Sandy]

Dans le message de news:[email protected],
Rico X. Partay <[email protected]> a réfléchi, et puis a déclaré :
> Mike Jacoubowsky wrote:
>
>>>> The "implied [warranty] of [merchantability]" which
>>>> *may* (but does not always) create a contract issue
>>>> between buyer and seller is not, repeat, not not not
>>>> not not in any way related to a warranty that exists
>>>> between manufacturer and seller....
>
>> No contradiction whatsoever. My point was that a retailer
>> *may* choose to extend their own umbrella of coverage
>> over a product in the event a warranty issue arises. The
>> retailer is not legally obligated to do so. But the
>> retailer may (perhaps should) feel a moral or ethical
>> obligation to take care of the customer as best they can.
>
>
> One more example of why the "not not not not not in any
> way related" statement is incorrect (along with at least two
> others posted here).

I thought about this today, and with the keenly attentive merchants who
write in this forum, they ought to understand that they are extending their
warranties significantly when they inquire about the habits and intended
uses of the buyer, when they fit the bike to the individual, when they
recommend modifications or additions. Those are all elements of a warranty
of fitness for a particular use, and the doors are pretty much open on where
that goes.

It is absolutely laudable that you guys do all this. You may really want to
chat with your lawyer (yes, a plea to spend money on the brotherhood), and
perhaps examine your liability policies more closely (avoiding talking to
the insurer, unless especially pertinent). In some cases, you may well be
voiding the available warranties of manufacturers and putting yourselves in
their stead.

Just trying to be helpful. The above is guaranteed 100% free of sarcasm,
denigration, snotty remarks, indifference, platitudes, fuming demands that
"you do the math", conceited visions of a better world on wheels according
to [insert NAME here].
--
Les faits relatés ici ne sont que pure fiction, et ne sauraient être
utilisés ou rapprochés d'une situation réelle existant ou ayant
existée

 

[Jay Beattie]

"Mike Jacoubowsky" <[email protected]> wrote in message
news:[email protected]...
> > Mike Jacoubowsky seems to contradict himself in two
consecutive
> > paragraphs:
> >
> >> The "implied [warranty] of [merchantability]" which
> >> *may* (but does not always) create a contract issue
> >> between buyer and seller is not, repeat, not not not not not
in any way
> >> related to a warranty that exists
> >> between manufacturer and seller....
> >
> >> .... That's not to say that a
> >> retailer doesn't have some responsibility to back up the
> >> product they sell, but there have to be (and are in fact)
> >> limits.
> >
> >
> > Obviously the two contracts -- retailer/end-customer and
> > retailer/manufacturer -- are are are are are are related in
some way, at
> > least in so far as it is the same product and therefore
merchantability
> > factors are essentially the same in both transactions. It's
just that
> > there are, as you say, limits in each context, and those
limits can be
> > different in the two contexts, even wrt the same product.
>
> No contradiction whatsoever. My point was that a retailer *may*
choose to
> extend their own umbrella of coverage over a product in the
event a warranty
> issue arises. The retailer is not legally obligated to do so.
But the
> retailer may (perhaps should) feel a moral or ethical
obligation to take
> care of the customer as best they can.

It is more accurate to say that the retailer may disclaim the
implied warranties, subject to the Magnuson-Moss Act and any
local consumer protection laws -- and subject to the UCC and the
law of contracts. But the long and short of it is that an LBS
can contract its way out of any warranty obligation in most
states. Most LBSs try to do that with mixed success. The deal
is that many LBSs are also obligated under their dealership
agreements to do warranty service, so they get looped back in
that way anyway.

As for the contract between the LBS and the manufacturer, that
really does not make much difference to the consumer. It is
controlled by the UCC warranty provisions but not the consumer
protection acts like Magnusson Moss Act.

By the way, it used to be the case that implied warranties only
ran between the immediate seller and the immediate consumer.
This meant that there was no implied warranty between the
manufacturer and the consumer because there was no direct
contractual relationship (which was between the retailer and the
consumer). That has been done away with by state consumer
warranty acts and probably by the Magnuson Moss.

Insurance policies do not cover breach of warranty unless the
breach amounts to a tort (product breaks, you get hurt). When
someone gets hurt, the tort law takes over. That is when you see
everyone in the chain of distribution getting sued. Assuming no
causal involvement by the bike shop, the manufacturer assumes the
defense for everyone -- assuming they are not some dead-beat off
shore company with a Chinese insurer. Then an importer gets
stuck or maybe even the LBS. -- Jay Beattie.

 

[Sandy]

Dans le message de news:[email protected],
Jay Beattie <[email protected]> a réfléchi, et puis a déclaré :
> "Mike Jacoubowsky" <[email protected]> wrote in message
> news:[email protected]...
>>> Mike Jacoubowsky seems to contradict himself in two consecutive
>>> paragraphs:
>>>
>>>> The "implied [warranty] of [merchantability]" which
>>>> *may* (but does not always) create a contract issue
>>>> between buyer and seller is not, repeat, not not not not not in
>>>> any way related to a warranty that exists
>>>> between manufacturer and seller....
>>>
>>>> .... That's not to say that a
>>>> retailer doesn't have some responsibility to back up the
>>>> product they sell, but there have to be (and are in fact)
>>>> limits.
>>>
>>>
>>> Obviously the two contracts -- retailer/end-customer and
>>> retailer/manufacturer -- are are are are are are related in some
>>> way, at least in so far as it is the same product and therefore
>>> merchantability factors are essentially the same in both
>>> transactions. It's just that there are, as you say, limits in each
>>> context, and those limits can be different in the two contexts,
>>> even wrt the same product.
>>
>> No contradiction whatsoever. My point was that a retailer *may*
>> choose to extend their own umbrella of coverage over a product in
>> the event a warranty issue arises. The retailer is not legally
>> obligated to do so. But the retailer may (perhaps should) feel a
>> moral or ethical obligation to take care of the customer as best
>> they can.
>
> It is more accurate to say that the retailer may disclaim the
> implied warranties, subject to the Magnuson-Moss Act and any
> local consumer protection laws -- and subject to the UCC and the
> law of contracts. But the long and short of it is that an LBS
> can contract its way out of any warranty obligation in most
> states. Most LBSs try to do that with mixed success. The deal
> is that many LBSs are also obligated under their dealership
> agreements to do warranty service, so they get looped back in
> that way anyway.
>
> As for the contract between the LBS and the manufacturer, that
> really does not make much difference to the consumer. It is
> controlled by the UCC warranty provisions but not the consumer
> protection acts like Magnusson Moss Act.
>
> By the way, it used to be the case that implied warranties only
> ran between the immediate seller and the immediate consumer.
> This meant that there was no implied warranty between the
> manufacturer and the consumer because there was no direct
> contractual relationship (which was between the retailer and the
> consumer). That has been done away with by state consumer
> warranty acts and probably by the Magnuson Moss.
>
> Insurance policies do not cover breach of warranty unless the
> breach amounts to a tort (product breaks, you get hurt). When
> someone gets hurt, the tort law takes over. That is when you see
> everyone in the chain of distribution getting sued. Assuming no
> causal involvement by the bike shop, the manufacturer assumes the
> defense for everyone -- assuming they are not some dead-beat off
> shore company with a Chinese insurer. Then an importer gets
> stuck or maybe even the LBS. -- Jay Beattie.

It's fun if this thread's trend moves to issues like you and I are
discussing. Direct right of action laws do allow getting to the
manufacturer, but given the offshore nature of the actual manufacturers, the
expense of prosecution and evidence gathering becomes even more burdensome.
An interesting element of this latter divergence is the fact that many
countries have anti-discovery and anti-testimony laws (like France),
although they can be circumvented ( with proper procedures) to take place in
an American embassy, under supervision of the diplomatic authorities.
Resistance to that has been feeble, in my experience.

As to offshore insurers, there is no policy available in the US which is not
based on available US assets, save for underreserved companies. Even then,
there are direct action options to go after the reinsurers, where the
plaitiff enters the shoes of the insured in order to capture both the
underlying insurance and the reinsurance. A good rule in obtaining coverage
is getting full disclosure of the reinsurance distributions, which are
usually forced to be disclosed under direct action statutes.

I can't see how the implied warranties of merchantability or, when
pertinent, fitness for a particular purpose can be avoided, unless the sale
involves express disclosure of the terms of the exclusion, and the buyer is
made specifically aware of the purported exclusion. Used materials may be
more exempt than new stuff, but not immune. As I look at it, the more the
seller is in a position to know the particulars of use and demand, and makes
a sale with such assurances, the less likely any written exclusion will have
effect on consumers.

On a different tack, manufacturers (I am not familiar enough with the bike
industry) often distribute the warranty risk directly to the reseller by
offering a discount that is supposed to compensate for the typical
percentage of defects encountered in a production line product.

But once the bike shop starts to select, build and sell a specific product,
the main protection they will obtain against manufacturers is the hidden or
latent defect, unless that has also been addressed in warranty handling
issues.

Still, I will agree (from experience) that there is usually a plethora of
defendants, cross-claiming, etc. And a specific advantage of this is having
an enormous number of peremptory challenges on the D side of the table,
against the single individual (or a couple if consortium loss is claimed) on
the other. Makes for lopsided jury selections.
--
Sandy

The above is guaranteed 100% free of sarcasm,
denigration, snotty remarks, indifference, platitudes, fuming demands that
"you do the math", conceited visions of a better world on wheels according
to [insert NAME here].

 

[Jasper Janssen]

On Mon, 16 Jan 2006 23:24:30 +0100, "Sandy" <[email protected]> wrote:

>On a different tack, manufacturers (I am not familiar enough with the bike
>industry) often distribute the warranty risk directly to the reseller by
>offering a discount that is supposed to compensate for the typical
>percentage of defects encountered in a production line product.

I've heard that it is common for the oriental frame manufacturers to ship
over containers with 5 or 10% extra unpaid for product specifically to
handle defects, both caught during assembly and later by the consumer.

Jasper