When does a right to subsequent performance exist?
Under UK sale of goods law, the rules are set out in the Sale of Goods Act 1979, in particular Section 13 (goods must match their description) and Section 14 (goods must be of satisfactory quality and fit for purpose).
If a product does not meet the agreed quality, the buyer can demand subsequent performance. This applies when the goods do not comply with what was agreed in the B2B contract or business to business agreement, for example in terms of performance, size, materials, or functionality.
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Right to Repair under UK Law: Buyer’s Choice in Subsequent Performance
If a purchased item does not meet the agreed quality, the buyer has the right to request subsequent performance. This means the buyer can choose between a replacement delivery or the removal of the defect, for example through a repair. This is known as the right to repair (UK). The buyer may also first request a repair and later demand a replacement delivery. In both cases, the seller must bear the costs of subsequent performance.
Under UK sale of goods law, these rights apply in B2B transactions as well. Buyers are required to inspect the goods within a reasonable period and notify the seller promptly if a defect is discovered. If the defect is not reported in time, the goods may be considered accepted, and the buyer’s defect rights and buyer’s legal rights may no longer apply.
A common question is how many times a seller is allowed to repair an item before the buyer can demand a replacement. The law does not set a fixed number of repair attempts. In practice, two repair attempts are often regarded as reasonable.
Another related question is how often a seller may repair before the buyer is entitled to a replacement delivery. There is no clear legal rule. What is considered reasonable always depends on the individual case, including the type of goods and the seriousness of the defect. Under B2B contract law, courts may allow more or fewer repair attempts depending on the circumstances.
The principle of proportionality
The buyer’s right to choose the type of subsequent performance is limited by proportionality. A seller may refuse a specific option if it is economically unreasonable. This can happen, for example, when a repair would cause very high costs.
Whether costs are disproportionate is decided case by case. Lawyers usually look at the value of the item when it is defect free and how serious the defect is. Based on this, they decide which type of subsequent performance is reasonable. If a replacement delivery would be too expensive, the buyer may have to accept a repair under their right to repair under the goods of sales act frameworks.
Mass-produced goods are replaced, custom-made products are repaired
Replacement of delivery or subsequent performance often depends on the goods being complained about. If it involves, for example, C-parts (mass-produced goods such as screws, cables, etc.), it is usually faster, qualitatively safer, and mostly cheaper to opt for a replacement delivery under sale of goods act damaged goods standards. It is different from custom-made products: for a complex production plant, repair is usually faster and more cost-effective.
What is reasonable for buyers and sellers according to the law
The law states that for replacement deliveries, only one attempt is considered reasonable for the buyer. This means that if a product is delivered again and still has material or legal defects, the buyer generally has the right to demand a refund of the purchase price.
For repairs as part of subsequent performance, the law is more flexible. In most cases, the seller is allowed to make two repair attempts to make the product comply with the legal business contract. However, this always depends on the individual case. In some court decisions, sellers have been given only one repair attempt. This directly affects contract law legality and the short-term right to reject. In a B2B agreement, the buyer must bear the installation and removal costs themselves. Knowing how to write a contract clearly is therefore important in such cases.
For more ideas on rights to repair, europages Inside Business offers helpful tools and inspiration.
