Section 75 yes or no?

[teaboy2]

Re: Section 75 yes or no?

But thats no different than making a charge back or section 75 claim using section 13 of the sales of goods act 1979 for item not being as described. There is no need for the buyer to return the goods to be entitled to make such claim under section 75 or charge back. Though obivously once the money is returned to the customer they are liable to ensure the return or allow collection of the goods to the seller.

Its better to keep hold of the goods when doing a charge back of section 75 claim and wait for the money to be returned to your account prior to sending goods back. Otherwise it opens the door for the seller to claim they issued a part refund already prior to the charge back after receiving the goods from the buyer. Which will only result in another dispute.

[Redletter]

Re: Section 75 yes or no?

Be very careful as the seller is not obliged to issue a refund prior to goods being returned at all. In fact they are entitled to keep all monies until the goods are returned. The reason for this is to prevent the seller being victim to fraud where a buyer cancels and asks for a refund, gets the refund but fails to return the goods. You should not add to what the Law actually states as your interpretation may not be correct and could come back to haunt you. Thats why you should just stick to the facts and qoute the law in support of the facts.

Distance selling regulations are not really the issue here, your strongest legal option is section 13 of the sales of goods act as it takes precendence over the DSR. And will leave the seller with no option but to issue you a refund, once you have returned the goods, or face legal action which would be very costly to the seller.

Also you refer to this being a project, am i right in thinking your purchase was as a business, limited of sole trader? If so then DSR simply do not apply to business to business contracts. Making the sales of goods act your only option.

But thats no different than making a charge back or section 75 claim using section 13 of the sales of goods act 1979 for item not being as described. There is no need for the buyer to return the goods to be entitled to make such claim under section 75 or charge back. Though obivously once the money is returned to the customer they are liable to ensure the return or allow collection of the goods to the seller.

Its better to keep hold of the goods when doing a charge back of section 75 claim and wait for the money to be returned to your account prior to sending goods back. Otherwise it opens the door for the seller to claim they issued a part refund already prior to the charge back after receiving the goods from the buyer. Which will only result in another dispute.

Hi Teaboy2. Thanks but can you clarify, forgive me if I'm being thick but in post 21 you refer to section 13 refund "once you have returned the goods" , but then reference last post "there is no need for the buyer to return the goods" and "It's better to keep hold of the goods"

Have I to send them back first or not??

Thanks.

[teaboy2]

Re: Section 75 yes or no?

Hi Teaboy2. Thanks but can you clarify, forgive me if I'm being thick but in post 21 you refer to section 13 refund "once you have returned the goods" , but then reference last post "there is no need for the buyer to return the goods" and "It's better to keep hold of the goods"

Have I to send them back first or not??

Thanks.

Hi no you keep the goods till you get the money back via charge back under section 13 sales of goods act. Onve the money is back in your account then you return the goods or arrange for seller to collect.

I probably just got mixed up in post 21 because of the DSR return first, refund last or refund first the return last debate.

[Redletter]

Re: Section 75 yes or no?

Ah ok thanks for that.
So am I better off using Davyb's shorter version of the section 75 request or the one I drafted?
I don't want to put more info than is necessary.

Thanks in advance.

[teaboy2]

Re: Section 75 yes or no?

The one you wrote up is fine as it sales everything that need to be said to the card company. They may contact you for a bit more information and to confirm everything with you, but thats nothing to worry about.

[Redletter]

Re: Section 75 yes or no?

Thanks TB2.
I am just about to send a the S75 letter and today I received this response to my initial enquiry/complaint from Consumer Direct aka Citizens Advice:

Dear Redletter,
Thank you for your enquiry to the Citizens Advice consumer service dated 09/10/2012. Your reference number for this case is ******** and should be quoted in all further correspondence regarding this case.
We understand from your email that a trader has refused to refund under the Distance Selling Regulations and you are trying to establish what your rights may be.
Based on the information you have provided the key legal points in response to your enquiry are:
When you enter into a contract with a trader by means of a distance communication (telephone, internet, mail order etc.) you will generally have cancellation rights under the Distance Selling Regulations. The period in which you can cancel starts when you place the order. When this period ends depends on when the trader provides written information (in print or by email) confirming details of the order and your cancellation rights:
• If the trader sends the written information before they send the goods or enclosed with the goods – the cancellation period ends 7 working days after the goods are received;
• If the trader sends the written information after the goods - the cancellation period ends 7 working days after the written information is received;
• If the trader does not send the written information – the cancellation period ends 3 months and 7 working days from the day after the goods are received to cancel.
If you cancel you may ask for a full refund (including any delivery charges). The trader must provide this refund within 30 days.
The law allows a trader up to 30 days to deliver goods that are ordered at a distance, unless specific arrangements have been made for delivery within a certain time frame. If goods are not delivered within 30 days the consumer may consider the contract automatically cancelled.
The trader may ask you to return the goods and / or pay the return costs but can only do so if it was made clear in the written information. If the written information does not specify that you are responsible for returning the goods, you may expect the trader to collect the goods; if it does not specify you are responsible for the cost of return then the trader must bear this cost. Until the goods are returned to (or collected by) the trader, you have a ‘duty of care’ over the goods so it is important not to use the goods or do anything else which may damage them as this may mean the trader is not obliged to provide a full refund.
To cancel you must inform the trader either by letter, email or fax and it must be sent before the end of the cancellation period. We would advise to include details (e.g. any order reference number) to help the trader match your cancellation request to their records; it is also advisable to keep a copy of your cancellation request and if posting, to get ‘proof of postage’ so you can prove that you sent the cancellation request before the end of the cancellation period.

You do not necessarily have to return the goods to the trader within 7 days; sometimes this can be difficult to do in this period. You do have a duty of care over the goods, and if you have used them the trader may be able to claim damages from you if there are any losses to the trader as a result of this. However, this would be an entirely separate issue to your rights under the Distance Selling Regulations.

The trader cannot overrule statutory law with his terms and conditions, and to attempt to do so may be deemed to be a criminal offence.

You would not have any rights under the Distance Selling Regulations if this were a trade to trade purchase.

At this stage you should formalise your complaint by sending the trader a letter in the post by recorded delivery. The letter should outline any relevant events regarding this issue and make it clear what you expect from the trader and why. It should also give the trader a reasonable timeframe in which to respond to your claim(s), we would suggest 14 days. If the trader does not respond to this letter with a satisfactory remedy you should send the trader one more recorded delivery letter. This time giving the trader 7 days in which to respond, making it clear to the trader that this is your final letter before taking further action. You should keep copies of all letters sent.

Template letters can be found at: Http://www.adviceguide.org.uk/england/consumer_e/consumer_taking_action_e/consumer_making_a_complaint_e/consumer_sample_letters_e/list_of_sample_letters.htm (if the link does not work when you click it, please copy and paste it into your browser address bar). In this case, the letter named ‘Letter cancelling a distance sale to buy goods.’ would be most suitable.

When using the template letters it is important that you follow the online instructions carefully. In addition, once the letter has been generated it may also need further editing, in order to make it clear to the trader what the nature of your complaint is.

The reason we ask you to send mail by recorded delivery is that this may help you prove that you have contacted the trader and tried to resolve the matter amicably, you can also use the ‘Recorded Signed For’ label the post office will supply you with to confirm that the trader has received the letter. In our experience, this is the best way to proceed before you escalate your claim with the appropriate independent body i.e. Ombudsman scheme, Alternative Dispute Resolution scheme (A.D.R) or even a civil court.
If you require any further advice or information about this case, please do not hesitate to contact the Citizens Advice consumer service by return email or on 08454 04 05 06 quoting the case reference number.
Thank you for your enquiry.

[teaboy2]

Re: Section 75 yes or no?

Thanks TB2.
I am just about to send a the S75 letter and today I received this response to my initial enquiry/complaint from Consumer Direct aka Citizens Advice:

Dear Redletter,
Thank you for your enquiry to the Citizens Advice consumer service dated 09/10/2012. Your reference number for this case is ******** and should be quoted in all further correspondence regarding this case.
We understand from your email that a trader has refused to refund under the Distance Selling Regulations and you are trying to establish what your rights may be.
Based on the information you have provided the key legal points in response to your enquiry are:
When you enter into a contract with a trader by means of a distance communication (telephone, internet, mail order etc.) you will generally have cancellation rights under the Distance Selling Regulations. The period in which you can cancel starts when you place the order. When this period ends depends on when the trader provides written information (in print or by email) confirming details of the order and your cancellation rights:
• If the trader sends the written information before they send the goods or enclosed with the goods – the cancellation period ends 7 working days after the goods are received;
• If the trader sends the written information after the goods - the cancellation period ends 7 working days after the written information is received;
• If the trader does not send the written information – the cancellation period ends 3 months and 7 working days from the day after the goods are received to cancel.
If you cancel you may ask for a full refund (including any delivery charges). The trader must provide this refund within 30 days.
The law allows a trader up to 30 days to deliver goods that are ordered at a distance, unless specific arrangements have been made for delivery within a certain time frame. If goods are not delivered within 30 days the consumer may consider the contract automatically cancelled.
The trader may ask you to return the goods and / or pay the return costs but can only do so if it was made clear in the written information. If the written information does not specify that you are responsible for returning the goods, you may expect the trader to collect the goods; if it does not specify you are responsible for the cost of return then the trader must bear this cost. Until the goods are returned to (or collected by) the trader, you have a ‘duty of care’ over the goods so it is important not to use the goods or do anything else which may damage them as this may mean the trader is not obliged to provide a full refund.
To cancel you must inform the trader either by letter, email or fax and it must be sent before the end of the cancellation period. We would advise to include details (e.g. any order reference number) to help the trader match your cancellation request to their records; it is also advisable to keep a copy of your cancellation request and if posting, to get ‘proof of postage’ so you can prove that you sent the cancellation request before the end of the cancellation period.

You do not necessarily have to return the goods to the trader within 7 days; sometimes this can be difficult to do in this period. You do have a duty of care over the goods, and if you have used them the trader may be able to claim damages from you if there are any losses to the trader as a result of this. However, this would be an entirely separate issue to your rights under the Distance Selling Regulations.

The trader cannot overrule statutory law with his terms and conditions, and to attempt to do so may be deemed to be a criminal offence.

You would not have any rights under the Distance Selling Regulations if this were a trade to trade purchase.

At this stage you should formalise your complaint by sending the trader a letter in the post by recorded delivery. The letter should outline any relevant events regarding this issue and make it clear what you expect from the trader and why. It should also give the trader a reasonable timeframe in which to respond to your claim(s), we would suggest 14 days. If the trader does not respond to this letter with a satisfactory remedy you should send the trader one more recorded delivery letter. This time giving the trader 7 days in which to respond, making it clear to the trader that this is your final letter before taking further action. You should keep copies of all letters sent.

Template letters can be found at: Http://www.adviceguide.org.uk/england/consumer_e/consumer_taking_action_e/consumer_making_a_complaint_e/consumer_sample_letters_e/list_of_sample_letters.htm (if the link does not work when you click it, please copy and paste it into your browser address bar). In this case, the letter named ‘Letter cancelling a distance sale to buy goods.’ would be most suitable.

When using the template letters it is important that you follow the online instructions carefully. In addition, once the letter has been generated it may also need further editing, in order to make it clear to the trader what the nature of your complaint is.

The reason we ask you to send mail by recorded delivery is that this may help you prove that you have contacted the trader and tried to resolve the matter amicably, you can also use the ‘Recorded Signed For’ label the post office will supply you with to confirm that the trader has received the letter. In our experience, this is the best way to proceed before you escalate your claim with the appropriate independent body i.e. Ombudsman scheme, Alternative Dispute Resolution scheme (A.D.R) or even a civil court.
If you require any further advice or information about this case, please do not hesitate to contact the Citizens Advice consumer service by return email or on 08454 04 05 06 quoting the case reference number.
Thank you for your enquiry.

Hi redletter

Yeah as you can see their response backs up what i said about the trader having 30 days to refund, hence why i advised against using the DSR with your section 75/charge back request. As the card company would have to allow 30 days for the traders statutory right to 30 days to issue the refund.

They are correct in that the traders terms can not go against a DSR and it may be a criminal offense if they do.

But as i said, as the goods where not as discribed then the seller is in breach of section 13 sales of goods act 1979, which means your entitled to do a section 75/Charge back at any time after cancellation notice is given to the seller or you have notified the seller of the problem asking them to rectify and they fail/refuse to do so, which under sales of goods act entitles you to a full refund. At the sellers right to 30 day to refund under the DSR are irrelevant and do not apply.

Just make sure you send the bloody thing back to the seller or arrange for him to collect the goods at his cost once you have your money back via the section 75/charge back request you made. Otherwise you'd be leaving yourself open to a claim from the seller, though if you email him (after you get your money back) advising telling him he is free to arrange collection or collect the goods at his cost, and to advise you of the date of collection. Then your arse is covered, so to speak.

[Redletter]

Re: Section 75 yes or no?

Nice one TB2! Thanks for the reply. Should I await a response from the Credit provider before I send back the goods?

[teaboy2]

Re: Section 75 yes or no?

Yes, but don't send them back till you already have the money back in your account etc.

[Redletter]

Re: Section 75 yes or no?

Interesting coincidence that this was on news today...

http://uk.news.yahoo.com/online-shop...230717525.html

http://www.bbc.co.uk/news/business-19910561

[teaboy2]

Re: Section 75 yes or no?

Unfortunately a lot of the smaller online websites take their terms and from conditions from the bigger ones and admend them for their own site, assuming the bigger ones terms and conditions comply with the law. Also when a person sets up a ecommerce site, or business, no infomation is given to them by the OFT or other regulaters explaining to them what is required of them. So the sellers are left to either finding out via research (which can result in just copying what other sites have done) or by finding out the hard way when they get a letter from the likes of the OFT.

[Redletter]

Re: Section 75 yes or no?

I might have got this sorted now after all. I sent the above links to the supplier and received an email back in which he said he had seen his solicitor and he conceeded that I was indeed entitled to a refund. He explained that his terms & conditions were put in place by his website designer and that he would be ammending them. He said that he was quite new to internet shopping and was not familiar with the additional rights of the consumer. He agreed to give me a full refund to my credit card but still insisted on getting the goods back first saying that his solicitor had said I should do so, so I have agreed to send them back as he is no longer stating that the refund is conditional. Apparently his solicitor did say that a refund was due even if the product had been opened, but his solicitor still reckoned that they should not be 'used'. Despite this he indicated he will still refund.

[labman]

Re: Section 75 yes or no?

So the sellers are left to either finding out via research (which can result in just copying what other sites have done) or by finding out the hard way when they get a letter from the likes of the OFT.

To be fair, it should be said that Trading Standards are always happy to come out and go through this sort of thing with businesses. They can be an enormous help.

[wales01man]

Re: Section 75 yes or no?

Lets all hope its sorted send it back and get a refund which as an ex internet retailer is the only way i would have refunded after having chargebacks from our bank when people used stolen cards i trusted no one as long as the item is not used he must refund if not you can try for chargeback or take further action, I suspect when he gets the item he will refund but be prepared for him to drag this out for a few days after all he feels as wronged by you as you feel wronged by him lesson here for everone read the conditions of sale if you find a problem dont buy from the seller and try reporting it remember the best advice as ever is BUYER BEWARE
Im not putting the OP down just given by opinion on this thread from the point of view as someone who has faced his situation from both sides i got as worked up him we all think we are right?

[Redletter]

Re: Section 75 yes or no?

Hi everyone.
Update as promised.
Received this today after sending the light back yesterday....

"Just to confirm I received the light this afternoon in expectable condition so thank you for that and a full refund has been forwarded for you via the card you made payment with."

Thanks to all for advice and support I will update when the money appears back in my account!