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Statement of claim - 4031/7-1637 (English)
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Dato for afgørelse:
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24-04-2007
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Lovgrundlag:
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Danish Sale of Goods Act
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Sagsnummer:
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4031/7-1637
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As the Complainant's computer continuously suffered from breakdowns, the Complainant complained to the Respondent, who rejected remedying under the right to complaint, referring to the fact that the defect arose outside the accompanying 1 year guarantee period and that the Complainant had not proved that the defect was an original defect.
STATEMENT OF CLAIM
Respondent:
Apple Computer International
Søllerødvej 64
Apple Computer Filial AB
DK-2840 Holte
Complaint Subject: Apple iBook G4 has defective motherboard.
The Board Expert:
Mr Sven Skau, IT Consultant
Kirsebærlunden 30
DK-3460 Birkerød
Members of the board:
Erik Kjærgaard, formand
Kirsten Nielsen
Finn Terkelsen
Claus Bonde Mikkelsen
Per Buchwaldt
STATEMENT OF CLAIM:
The Agreement concerns: Purchase of a computer of the Apple iBook G4 brand.
Purchase Date: 24 March 2004.
Cost: DKK 10,150 (Appendix 1).
Complaint made to the Vendor: 30 May 2005 and 20 June 2005.
Content and Course of the Complaint:
As the Complainant's computer continuously suffered from breakdowns, the Complainant complained to the Respondent, who rejected remedying under the right to complaint, referring to the fact that the defect arose outside the accompanying 1 year guarantee period and that the Complainant had not proved that the defect was an original defect.
Complaint form received by the National Consumer Agency: 23 June 2005.
THE PARTIES' CLAIMS AND ARGUMENTS:
The Complainant: As the motherboard is defective, the Complainant wishes to cancel the purchase as the Respondent has not offered free remedy within a reasonable time.
The Respondent: Does not find that it is proven on a balance of probabilities that the defect was present at the time of delivery. The Respondent therefore rejects the Complainant's claim, referring to the fact that only 1 year's guarantee has been given, and that, incidentally, the Complainant has received an offer of repair against a payment of DKK 6,200.
PROCESSING THE CLAIM BEFORE THE NATIONAL CONSUMER AGENCY:
The Consumer Agency has arranged for an expert examination of the object of the complaint with a view to obtaining further particulars in the case. On 8 May 2006, the Consumers' Complaints Board experts prepared an Expert Statement which has been sent to the parties. The expert was not able to ascertain the reason for the defect at the time. (Appendix 2).
As the Consumer Agency ascertained a number of cases filed with the same type of fault on corresponding products from the same manufacturer, a new expert examination was ordered, supplemented by a destructive examination of one of the computers with an electronics laboratory. This resulted in the Expert Statement of 6 December 2006. (Appendix 3).
The original Expert Statement of 8 May 2006 has been withdrawn.
APPENDICES TO THE CASE:
Appendix 1: Receipt for purchase of computer.
Appendix 2: Withdrawn Expert Statement of 8 May 2006
Appendix 3: Expert Statement of 6 December 2006.
The Board's Remarks:
The Consumers' Complaints Board has received a number of similar complaints about computers of the Apple brand, most of them of the iBook G4 model type. The computers have been examined by the Consumers' Complaints Board Expert who has found that none of the computers were working, but that all of them, apart from one, could be made to function by placing a clamp in the area around the computer's touch pad.
The expert has had one of these computers undergo an extensive destructive examination in an electronics laboratory, which has discovered that the reason for the breakdown of the Apple-computers should be sought in a component on the motherboard, ISL 6225CA (SO-U28), through which the current for memory modules and/or graphics chips is regulated. The examination has shown that the solder joints of the component are degraded concurrently with the computer being turned on and off until there is no longer any contact between the solder joints, and it is therefore not possible for the current to pass through to the motherboard.
On the basis of the examination result, the expert has concluded that the malfunction can be traced back to an inappropriateness in the design – a design/construction defect - on the Apple computer motherboard.
With reference to that and to the fact that the iBook could be made to work by means of the "clamp method", the Board finds it unobjectionable to base itself on the fact that the iBook in dispute in this matter did contain a hidden defect at the time of delivery. In addition, by his examination of the iBook in dispute in this case, the expert has furthermore confirmed the "clamp method" by finding fractures in the solder joints of Pins 1 and 28 on the above-mentioned component by means of stereo microscopy.
Because of the above, as the computer must be deemed to be materially defective, the Complainant is entitled to cancel the purchase of the computer, cf. hereby No. 4 of Subs. 1 of S. 76 of the Danish Sale of Goods Act, read with No. 4 of Subs. 1 of S. 78.
The Complainant's claim for payment is made in the Complaint Form which the Consumer Agency has forwarded to the Respondent on 29 June 2005. Pursuant to Subs. 2 of S. 3 of the Danish Interest Act, interest shall be payable when 30 days have passed after the sending or presentation of the claim for payment. The Complainant can therefore demand interest on his claim for DKK 10,150 at the Interest Act interest rate as from 30 July 2005 until payment is effected. It appears from Subs. 1 of S. 5 of the Interest Act that, according to the Interest Act, the interest rate is fixed at an annual rate of interest corresponding to the official lending rate of the Danish central bank, the Nationalbanken, as at 1 January and 1 July in the relevant year plus 7%. This means that, according to the Interest Act, the interest rate has constituted 9.15% per annum since 1 July 2003, and that, with effect as from 1 January 2006, it has risen to 9.40% per annum, as from 1 July 2006 to 10% and as from 1 January 2007 to 10.75%.
Furthermore, the Respondent shall pay an amount to the Consumer Agency to cover the expenses incurred by the Agency in connection with the processing of the case before the Consumers' Complaints Board, cf. Subs. 1 of S. 17 of the Consumers' Complaints Act. The amount shall be fixed pursuant to Executive Order No. 1119 of 12 December 2003 on fees and costs at the Consumers' Complaints Board at DKK 4.700, cf. No. 1 of Subs. 1 of S. 2 and No. 3 of Subs. 2 of the Executive Order.
The Consumer Agency shall return the complaint fee of DKK 150 to the Complainant, cf. S. 16 of the Consumers' Complaints Act.
Accordingly, the Board makes the following D E C I S I O N:
The Respondent, Apple, shall within 30 days from today's date to the Complainant, Michael Sørensen, pay DKK Michael Sørensen to 10.150 plus interest hereon pursuant to the [Danish] Interest Act as from 30. juli 2005 and until payment takes place, against delivery of computer.
Furthermore, the Respondent shall pay costs to the Consumer Agency of DKK 4.700, which shall be payable 30 days after the date on which the Consumer Agency sent out its demand note for the amount.
On behalf of the Consumers' Complaints Board, on
Erik Kjærgaard
Chairman
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Frederik Boesgaard Navne
Case Officer
Publiceret: 30-04-2007