Have you had your eye on a vintage piece of furniture? Found a second hand car in excellent condition? Or simply enjoy pre-loved clothes shopping?
Most of us have bought second hand goods at some point. Possibly via Facebook Marketplace, a second hand store, antiques shop or even through a friend.
In Australia, consumers have a certain level of protection when we buy goods and services. This ensures that buyers are protected and sellers are held accountable. But when we buy second hand goods, are we covered by the same consumer guarantees as when we buy brand-new? And are there any protections when we buy through a private sale?
Let’s investigate.
The second hand goods market is a busy one. It’s a wonderful way to prolong the life of material possessions and avoid adding to landfill prematurely. One man’s trash is another man’s treasure, as they say.
You can often find great bargains second hand, which can be of significant help to many of us during this cost-of-living crisis. But it’s reasonable to wonder whether the same consumer guarantees are afforded to buyers of second hand goods.
To answer this question, first we need to understand what consumer protection laws are in place in Australia. We also need to explore what guarantees are in place for buying from a business, as opposed to buying privately. Finally, we will assess whether the existing consumer guarantees apply to second hand goods – and under what circumstances.
The Australian Consumer Law (ACL) protects buyers around the country. This means that you have certain rights regardless of which state or territory you live in and/or which state or territory the business you’re buying from is based. It’s important to note that the same level of protection does not apply if you’ve bought the goods from overseas.
Fair trading ensures that you as a consumer can be confident that your purchase is protected. It also ensures that businesses that sell goods and services adhere to certain obligations.
The ACL covers the following areas:
The ACL gives you certain rights when you buy, hire or lease goods and services from a business. Regardless of what other warranties apply to your goods and services, consumer guarantees are automatically provided by the business.
Consumer guarantees apply to goods bought for personal or household use – that is, if purchased for $40,000 or less before 1 July, 2021, and if purchased for $100,000 or less after that date. Consumer guarantees also apply to vehicles and trailers, regardless of price, provided they are primarily used to transport goods.
There are nine guarantees on goods purchased from businesses:
These final three guarantees also apply to private and auction sales:
Certain conditions and exceptions apply to these consumer guarantees. Most consumer guarantees do not apply to one-off sales, for example (except for the final three guarantees, as explained above). Examples of one-off sales include garage sales and school fetes.
If a business fails to meet any of these consumer guarantees, you can seek a remedy. This could be through a refund, repair or replacement of the product, or compensation.
Yes, in certain circumstances.
It is common for second hand sales to be through private sales. This may be through a website such as Facebook Marketplace, Gumtree or eBay. Perhaps you visited a garage sale, school fete or second hand market. Maybe you bought the goods through a friend or family member.
In any of the private sale cases above, only the final three consumer guarantees (listed above) will apply. That is, ‘Clear title’, ‘Undisturbed possession’ and ‘Free from undisclosed securities’. This is of course the same for buying brand-new goods.
If you’re buying your second hand goods through a business, the same consumer guarantees should apply. But of course when buying second hand, the age, price and condition of the product must be taken into consideration.
You cannot typically expect a second hand good to be of the same quality, last as long or perform as well as a brand-new version of the product. The expectations of the consumer need to be reasonable in these circumstances.
Another important point to be aware of is that if the seller has notified you of any defects in the second hand product, you may not be entitled to a remedy. In this case, you should thoroughly inspect the product before you purchase.
Of course, buying goods second hand can mean an increased risk that the product won’t perform as well, be as durable or as safe as a brand-new version. If it’s really old you might also struggle to find replacement parts for repair.
In addition to inspecting any notified defects, as suggested above, you should also consider asking questions around safety, such as:
You can find more questions to ask the seller online.
How Patrick Dawson Law can help
If you believe a business has failed to meet a consumer guarantee on second hand goods you’ve purchased, you could seek legal advice. And on the other side of the coin, if you sell second hand goods, we can offer our legal advice to ensure you meet your obligations.
Please get in touch with the experienced team at Patrick Dawson Law and we will help you navigate the process.
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