Section 75 yes or no?

[labman]

Re: Section 75 yes or no?

I am sorry if I have tried your patience I am just trying to clarify what is the best approach based upon the advice of ALL posting.

Thanks.

You didn't try my patience at all. I was just responding to your comment about could you try chargeback and pointing out I was alluding to that much much earlier on.

In terms of you, "just trying to clarify what is the best approach based upon the advice of ALL posting." I am not sure you are being entirely honest with yourself. I suspect part of you is riling for a good argument. Everyone, save you, seems to be suggesting returning your purchase and getting a refund and yet we're into a second page of the thread. Is that really clarifying things or arguing for the sake of it?

I too would return it for a refund and I think you've taken sensible precautions to protect yourself over what you see as the dangers of doing so.

[Redletter]

Re: Section 75 yes or no?

As for terms and conditions. Well in Writing includes on website pages or other electronic communications such as email. When you pen a webpage it is no different to opening an email. The words are still displayed on the screen. So the seller has fully complied with his obligations to make the terms and conditions available to you and has provided them to you simply just be having a link to terms and conditions on their websites webpages. They do not have to send you hard copies in the mail. Whether you read the terms and conditions or not is the buyers responsability and in consumer law it is the responsability of the buyer to read the terms and conditions. Or are you seriously going to tell me the likes or Tesco, PC world and all the other big companies that supply goods online are wrong. As they only display the terms and conditions on their website, they do not provide you hard copies. All they have to do is make sure it is available and accessible on the website and this seller has done so.

Now you may not agree with me on legislation and regulations. But considering i myself am the sole owner and managing director of a wholesale stationary and office supplies company. Then i deal in these contracts on a daily basis from orders made either over the phone or through our website, so i know the law, the regulations inside out as a matter of necessity. So i also know what my rights are as a seller as well as what a consumers rights are.

In fact, forget the distance selling regulations and your whole argument about whether to return the goods or not. Just return them and see what the seller refunds to you. If they do not refund you the full amount then you can make a charge back claiming the seller was in breach of the sales of goods act 1979 as the item did not include all parts that were described as being included on the products webpage. Though make sure you write to the seller prior to returning the goods that you deem them in breach of the sales of goods act and the reason why, at you therefore expect a full refund as per your legal entitlement.

By refusing to return the goods when the seller has already offered to refund you on the return and inspection of the goods, then it is not the seller that is being unreasonable here it is you that is being unreasonable as you are refusing to comply with your duty to return the goods in breach of yur duty to restore the goods to the seller under the DSR. You simply can not claim the seller is in breach of the DSR when it is your own breach of your duty under the DSR to restore the goods to the seller, by either sending the goods back or allowing the seller to collect them, that has resulted in the seller breaching the DSR by not issuing you a refund. In other words its your own breach of the DSR that has led to the seller refusing to issue a refund until you honor your duty to restore the goods to him.

If you bought something from a shop and went back the next day asking for a refund but refused to return the goods or allow them to inspect them until after they have refunded you. Would the shop just simply say "ok heres your refund now give us the goods"? No, they would refuse to refund you untill they have the goods and have inspected them.

I know you feel hard done by, but by refusing to return the goods when the seller has offered to refund you upon their return, and arguing points from the DSR when you made complaint is about the item being not being as described which is covered under the sales of goods act 1979, not the DSR. Then your not helping your chances of getting a refund at all if anything your stance is all that is stopping you getting the refund that you want. I know it may come across as being little harsh, but i don't intent to cause offence here, but simply point you in the right direction to help you get the refund that you are after.

I did actually initially offer to return the goods at MY cost when I first made contact with the seller. That was until he stated that HIS terms and conditions were nothing to do with my statutory rights and that the law did not require him to give a refund as I had opened and 'used' the item. He claims that because his terms and conditions state that the item must be unopened I do not have the right to a refund.
This is untrue. The DSR's are Regulations which have been put in place for consumer protection and clearly state that upon cancellation a full refund must be given asap or in any case within 30 days.
As previously stated I am under no obligation other than to 'take reasonable care' of the goods.

The situation with the shop does not apply as these are the Distance Selling Regulations so obviously if I bought goods face to face in a shop I would have to take them back to said shop.

The fact is that the DSR's require the seller to make an 'unconditional' refund.

The last two sentences of post 43 above clearly state the OFT guidelines to the Regulations so if it is not true why have they bothered to print it?

As for 'my own breach of the DSR's' I have not breached my obligation to take reasonable care of the goods and the supplier is welcome to collect them at a mutually convenient time should he so choose, but at his own cost.

The supplier is clearly in breach of the DSR's simply by trying to impose these unlawful 'conditions' upon the return by stating that a refund is at his discretion when that is not what the Regulations state.

I am concerned that, because he has taken this stance then he obviously has little consideration for statute and as such he could still withold my refund once he has the goods back.

My argument is that if he is required to refund me and this requirement is not linked to the return or to the resaleability of the goods then he should do so regardless. If I choose to (stupidly) retain the goods upon receipt of a refund then he could sue me but that is nothing to do with the DSR's.

[Redletter]

Re: Section 75 yes or no?

As for terms and conditions. Well in Writing includes on website pages or other electronic communications such as email. When you pen a webpage it is no different to opening an email. The words are still displayed on the screen. So the seller has fully complied with his obligations to make the terms and conditions available to you and has provided them to you simply just be having a link to terms and conditions on their websites webpages. They do not have to send you hard copies in the mail. Whether you read the terms and conditions or not is the buyers responsability and in consumer law it is the responsability of the buyer to read the terms and conditions. Or are you seriously going to tell me the likes or Tesco, PC world and all the other big companies that supply goods online are wrong. As they only display the terms and conditions on their website, they do not provide you hard copies. All they have to do is make sure it is available and accessible on the website and this seller has done so.

3.10

If you provide pre-contractual information in a form that does notallow it to be stored or reproduced by the consumer, such as during aphone call or on a website, then you must confirm in writing, or inanother durable medium12 available and accessible to the consumer,

the information given at paragraph 3.1(i) to (viii).


Now you may not agree with me on legislation and regulations. But considering i myself am the sole owner and managing director of a wholesale stationary and office supplies company. Then i deal in these contracts on a daily basis from orders made either over the phone or through our website, so i know the law, the regulations inside out as a matter of necessity. So i also know what my rights are as a seller as well as what a consumers rights are.

In fact, forget the distance selling regulations and your whole argument about whether to return the goods or not. Just return them and see what the seller refunds to you. If they do not refund you the full amount then you can make a charge back claiming the seller was in breach of the sales of goods act 1979 as the item did not include all parts that were described as being included on the products webpage. Though make sure you write to the seller prior to returning the goods that you deem them in breach of the sales of goods act and the reason why, at you therefore expect a full refund as per your legal entitlement.

By refusing to return the goods when the seller has already offered to refund you on the return and inspection of the goods, then it is not the seller that is being unreasonable here it is you that is being unreasonable as you are refusing to comply with your duty to return the goods in breach of yur duty to restore the goods to the seller under the DSR. You simply can not claim the seller is in breach of the DSR when it is your own breach of your duty under the DSR to restore the goods to the seller, by either sending the goods back or allowing the seller to collect them, that has resulted in the seller breaching the DSR by not issuing you a refund. In other words its your own breach of the DSR that has led to the seller refusing to issue a refund until you honor your duty to restore the goods to him.

If you bought something from a shop and went back the next day asking for a refund but refused to return the goods or allow them to inspect them until after they have refunded you. Would the shop just simply say "ok heres your refund now give us the goods"? No, they would refuse to refund you untill they have the goods and have inspected them.

I know you feel hard done by, but by refusing to return the goods when the seller has offered to refund you upon their return, and arguing points from the DSR when you made complaint is about the item being not being as described which is covered under the sales of goods act 1979, not the DSR. Then your not helping your chances of getting a refund at all if anything your stance is all that is stopping you getting the refund that you want. I know it may come across as being little harsh, but i don't intent to cause offence here, but simply point you in the right direction to help you get the refund that you are after.

Thanks I think I will try returning the goods but i wont hold my breath for the refund!

[labman]

Re: Section 75 yes or no?

I think you'll be surprised. If he didn't refund you, his business would go down the drain rapidly IMO. :beagle:

[Redletter]

Re: Section 75 yes or no?

You didn't try my patience at all. I was just responding to your comment about could you try chargeback and pointing out I was alluding to that much much earlier on.

In terms of you, "just trying to clarify what is the best approach based upon the advice of ALL posting." I am not sure you are being entirely honest with yourself. I suspect part of you is riling for a good argument. Everyone, save you, seems to be suggesting returning your purchase and getting a refund and yet we're into a second page of the thread. Is that really clarifying things or arguing for the sake of it?

I too would return it for a refund and I think you've taken sensible precautions to protect yourself over what you see as the dangers of doing so.

I really do not want to argue for the sake of it.
It just seems that some people tend to state their own interpretation of statute as being the correct version.
I have made reference to certain OFT guides which have been 'rubbished' by some posters which can lead to confusion!
If the DSR's state 'unconditional refund' how can that be 'on condition' that I first return the goods.
I'm not talking about what is morally right or what the supplier should expect nor am I stating that I think the way the Regulations are written is fair to the supplier as it seems heavily in favour of the consumer.
All I am trying to establish is what the law requires of either party and what my options would be if the supplier failed to refund.
I am still not clear as to whether Section 75 of CCA would apply in the case of breach of DSR's and having made the decision that I no longer wish to keep the goods in any circumstances I do not really want to claim the goods are not as described and simply be offered a hanging kit.

[Redletter]

Re: Section 75 yes or no?

I think you'll be surprised. If he didn't refund you, his business would go down the drain rapidly IMO. :beagle:

I'm curious to know why you think that would happen? Do you mean as a result of any action taken afterwards?

[labman]

Re: Section 75 yes or no?

My understanding is that Section 75 would apply for the credit card part of the transaction, offering additional, but separate protection to that already offered by the DSR's.

As for the above, if a retailer did not abide by the DSR's and a large proportion of their business is online, they will very likely get a bad reputation extremely quickly.

[teaboy2]

Re: Section 75 yes or no?

I did actually initially offer to return the goods at MY cost when I first made contact with the seller. That was until he stated that HIS terms and conditions were nothing to do with my statutory rights and that the law did not require him to give a refund as I had opened and 'used' the item. He claims that because his terms and conditions state that the item must be unopened I do not have the right to a refund.

Hence why am saying to you the sales of goods act 1979 would be a better approach as the goods did not comfirm to the goods discription and therefore you are entitled to a full refund or replacement. If he claims you used the items then usuage would be deemed as the item being used for what it was ment to be used for. Opening and testing the product does not constitute usuage of the product unless its a consumable or food item. He would also have to prove that it had been used for the purpose it was made for and not just tested.

This is untrue. The DSR's are Regulations which have been put in place for consumer protection and clearly state that upon cancellation a full refund must be given asap or in any case within 30 days.

Your missing the point. I agree with you a refund must be given within 30 days of the date the cancellation notice is received. However you also have a duty under the DSR to restore the goods to the seller in the same period. Your refusal to do so puts you in breach of the DSR, since the seller had offered to refund you on return of the goods. Therefore he can withold the money on the grounds that you are refusing to restore the goods to him even though he offered to refund you after return of the goods and therefore you are being unreasonable where as hes tried to be reasonable with you. Remember the seller has no way of knowing if you will or will not return the goods if he issued a refund first and he also has the right to not be defrauded. Therefore it is within his right to not refund you when you have refused to return the goods as per your duty under the DSR.

As previously stated I am under no obligation other than to 'take reasonable care' of the goods. No you also have a duty to restore the goods to the seller under the DSR, either by returning them yourselve or allowing him to have them collected from you.

The situation with the shop does not apply as these are the Distance Selling Regulations so obviously if I bought goods face to face in a shop I would have to take them back to said shop. Yes i know, but it was purely meant as an example to demostrate your logic reference wanting a refund whilst refusing to return goods as the an online retailer will not refund you till they have the goods back just like a shop would refuse to refund you. Its common practice that goods are returned prior to refunds being issued.

The fact is that the DSR's require the seller to make an 'unconditional' refund.No they do not, no where does it say a refund must be unconditional. That is just your own interpretation of what it actually says - "14.—(1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5)"

Free of charges is reference collection costs, and/or when the order is cancelled within the cancellation period and the terms state the buyer is responsable for the cost of returning the goods.

The last two sentences of post 43 above clearly state the OFT guidelines to the Regulations so if it is not true why have they bothered to print it?

Because it is meant as a guideline of what is good practice for business that sell online or over the phone. It is not rule of law and companies, except for finance companies or companies that provide finance, do not have to obey what the OFT guidelines say to the letter. Its called guidelines because that's simply all they are.

As for 'my own breach of the DSR's' I have not breached my obligation to take reasonable care of the goods and the supplier is welcome to collect them at a mutually convenient time should he so choose, but at his own cost.

But you have refused to return them until you have a refund and you are only now saying to us that he can collected at his own costs. But will you let the courier collect the goods prior to getting a refund is the question.

The supplier is clearly in breach of the DSR's simply by trying to impose these unlawful 'conditions' upon the return by stating that a refund is at his discretion when that is not what the Regulations state.

I agree, but you have a duty under section 17 subsection 3 to restore the goods to the seller upon cancellation and to take reasonable care of the goods in the meanwhile - Meanwhile meaning between the time it is in your possesion prior to your returning the goods to the seller as per your duty to do so upon cancellation. You can not just pick out parts of what the regulations say and ignore the bits that you don't like. You have a duty to restore the goods to the seller upon cancellation the seller has a duty to refund you. But if you refuse to honor your duty to restore the goods to the seller, then your in breach of the DSR and the Seller can then refuse to refund you as a result of your breach on the grounds that you are being unreasonable and are refusing to comply with your duty to restore the goods to him upon your cancellation.

I am concerned that, because he has taken this stance then he obviously has little consideration for statute and as such he could still withold my refund once he has the goods back.

But he offered to refund you on return of the goods which you have a statutory duty to do, its is your stance that is unreasonable and preventing you from getting the refund you want. As i said before, if he does not refund you in full then you can make a claim against him for remainder of the money plus 8% interest under the sale of goods act 1979 due to the goods not being as described on the sellers website. Thats the legislation you should be using not the DSR as the DSR disopute was brought about as a result of your own refusal to return the goods.

My argument is that if he is required to refund me and this requirement is not linked to the return or to the resaleability of the goods then he should do so regardless. If I choose to (stupidly) retain the goods upon receipt of a refund then he could sue me but that is nothing to do with the DSR's.

But it is as you have a duty to return the goods to him upon cancellation section 17 subsection 3 makes that clear you are refusing to do this, yet your expecting him to refund you in accordance to the DSR - Bit hypocritical really isn't it, your expecting him to fulfill his obligations under the DSR whilst you at the same time refuse to honor your obligations under th DSR! He would also have grounds to sue you for fraud too or worse report you to the police who would pursue it as a criminal act - and you wouldn't want that, would you.

See above in blue

[/I]Thanks I think I will try returning the goods but i wont hold my breath for the refund!

But Webpages can be printed out or even saved as at HTML File on a consumers computer. Therefore the consumer is able to take and store a copy - But as i said before, Consumer Law make it the responsability of the consumer to read terms and conditions before buying. What the OFT says is not always inline with the actual law and is only meant as a guideline to make things easier for consumers. Sellers are not obligated to do what the OFT states they are only obligated to follow the law.

[Guest]

Re: Section 75 yes or no?

From the DTI business guide to distance sales

What is a breach of statutory duty?
3.45 Under the DSRs consumers are under a statutory duty throughout the
period of cancellation to retain possession of the goods and take
reasonable care of them.

Refunds (Regulation 14)
When do I have to refund a consumer’s money if they cancel
an order?
3.46 As soon as possible after the consumer cancels, and in any case
within 30 days at the latest. You must refund the consumer’s money
even if you have not yet collected the goods or had them returned to
you by the consumer. You cannot insist on the goods being received
by you before you make a refund. See also paragraph 3.64.
Can I withhold a refund if a consumer fails to take
reasonable care of the goods?
3.47 No. Other than for the exceptions at paragraph 3.38 the DSRs give
consumers an unconditional right to cancel a contract and legally
oblige you to refund all sums due in relation to the contract as soon
as possible after the consumer cancels, and within a maximum of 30
days. The DSRs do, however, give suppliers a right of action against
consumers for breach of the statutory duty to take reasonable care.
What specifically do I have to refund to the consumer if
they cancel?
3.48 The DSRs require you to refund any money paid by or on behalf of
the consumer in relation to the contract to the person who made the
payment. This means the full price of the goods, or deposit or prepayment made, including the cost of delivery. The essence of
distance selling is that consumers buy from home and receive goods
at home. In these circumstances, almost every case of home
shopping will involve delivery of the goods ordered and so delivery
forms an essential part of the contract.

Can I insist that consumers who cancel an order within the
cancellation period return the goods as new or in their
original packaging?
3.58 No. Consumers are under a duty to take reasonable care of the goods
while in their possession as discussed in paragraph 3.44. The DSRs
allow consumers to examine goods they have ordered as they would
in a shop. If that requires opening the packaging and trying out the
goods then they have not breached their duty to take reasonable
care of the goods. In these circumstances you cannot insist that
consumers return the goods as new or in their original packaging.
You may ask consumers to return goods with the original packaging,
but you cannot insist on this. In the case of goods such as earrings
that have hygiene seals, you may require consumers to exercise
reasonable care by not removing the seals when examining them.
How can I resell the goods as new if they have been opened
and tested by the customer?
3.59 The DSRs do not provide any general exception to the right to cancel
on this point. Unless one of the specific exceptions referred to above
at paragraph 3.38 applies, consumers can exercise their right to
cancel a contract and return the goods to you. The DSRs do not link
cancellation rights with a supplier’s ability to resell items as new

This i believe is currently the position

D

[teaboy2]

Re: Section 75 yes or no?

Problem is Davyb, section 17 subsection 3 clearly states the consumer has a duty to restore the goods to the seller as well as take reasonable care of the goods in the meanwhile. They therefore have a statutory Duty to return the goods or have them available for collection. Where failure to do either puts them in breach of their statutory duty. There is no provision allowing the consumer to keep the goods until a refund is received.

Its is generelly accepted that goods be returned before a refund is issued this is how most businesses and consumers operate when orders are cancelled. It is therefore common practice that goods are returned or collected prior to a refund being issued.

What the DTI is saying is the customer is entitled to a refund without returning the goods and the seller has to revert to legal action to claim back the goods, which is wrong. As it leaves the seller wide open to being defrauded and having to seek the return of the goods our the monetary value of the goods from the customer via court, which if the customer has moved address or used unoccupied or forwarding address without the sellers knowledge, would make the buyer unfindable.

On a seperate note, on doing a bit of reading on the EU consumer Rights Directive - It states that a seller can charge charges to the buyer so long as these are clearly set out and available to the buyer. Now this may even apply to refunds too where restocking fees are clearly set out in the terms and conditions. Its also seems that the seller is entitled to charge for the actual cost of the card transaction fees and phone calls at the standard rate as well.

[Guest]

Re: Section 75 yes or no?

Problem is Davyb, section 17 subsection 3 clearly states the consumer has a duty to restore the goods to the seller as well as take reasonable care of the goods in the meanwhile. They therefore have a statutory Duty to return the goods or have them available for collection. Where failure to do either puts them in breach of their statutory duty. There is no provision allowing the consumer to keep the goods until a refund is received.

Its is generelly accepted that goods be returned before a refund is issued this is how most businesses and consumers operate when orders are cancelled. It is therefore common practice that goods are returned or collected prior to a refund being issued.

What the DTI is saying is the customer is entitled to a refund without returning the goods and the seller has to revert to legal action to claim back the goods, which is wrong. As it leaves the seller wide open to being defrauded and having to seek the return of the goods our the monetary value of the goods from the customer via court, which if the customer has moved address or used unoccupied or forwarding address without the sellers knowledge, would make the buyer unfindable.

On a seperate note, on doing a bit of reading on the EU consumer Rights Directive - It states that a seller can charge charges to the buyer so long as these are clearly set out and available to the buyer. Now this may even apply to refunds too where restocking fees are clearly set out in the terms and conditions. Its also seems that the seller is entitled to charge for the actual cost of the card transaction fees and phone calls at the standard rate as well.

HI
It may well be wrong , and I suspect that this is why the new regulations are being imposed in 2013 but the fact is that at the moment the dealer is supposed to issue refunds on cancellation if he has received the goods back or not.

When do I have to refund a consumer’s money if they cancel
an order?
3.46 As soon as possible after the consumer cancels, and in any case
within 30 days at the latest. You must refund the consumer’s money
even if you have not yet collected the goods or had them returned to
you by the consumer. You cannot insist on the goods being received
by you before you make a refund. See also paragraph 3.64.
Can I withhold a refund if a consumer fails to take
reasonable care of the goods?

The customer does have a statutory duty to take care of the goods and the dealer can take action for any losses of breach of that duty but he must do so after he has repaid the customer.

[teaboy2]

Re: Section 75 yes or no?

Well i think it may be open to debate and different interpretations. But i personally will simply continue to only issue refund once goods are return which is standard practice for many companies both for online and offline orders. Because as far as am concerned, the buyer has a duty to restore the goods to the seller and not to inpede on the sellers rights to receive the return of the goods.

By the way the DTI guide is just their interpretation of good practice under the DSR, its nothing more than that.

[labman]

Re: Section 75 yes or no?

It's interesting reading the business man's interpretation vs the consumer's interpretation.

[teaboy2]

Re: Section 75 yes or no?

True. But i fail to see how any legislation could leave a seller open to being defrauded.

[wales01man]

Re: Section 75 yes or no?

The thread is getting into war territory now seems that there are differing opinions on the law and DSR we can allform our opinions lets hope the OP lets us know the end resu;t as teaboy says and one must agree retailers online and others will only refund on receipt of goods any other way is certainly open to abuse