Section 75 yes or no?

[Guest]

Re: Section 75 yes or no?

Thanks but with respect, I don't think that is correct.

The DSR's clearly state that the supplier may not include terms and conditions which take away the consumer's statutory right to a FULL and unconditional refund. They may not make ANY deductions for a restocking fee or for repackaging. The consumer is under no obligation to return the items in their original packaging either. The suppliers T&C's cannot override the consumer's statutory rights and the supplier cannot impose conditions.

Yes absolutely, "no opting out", i think the cancellation term was increased to 14 days also from feb this year in the eu directive.

So cancel, if they don't refund claim for breach of contract under section 75..

D

[wales01man]

Re: Section 75 yes or no?

I still maintain that a refund would only be given on receipt of goods by the seller if this is not so we can all order something cancel then say we want a refund and hold onto the goods i wouldnt think that was correct then again someone on here would know the answer i would add again no major retailer would rfund without goods?

[teaboy2]

Re: Section 75 yes or no?

Thanks but with respect, I don't think that is correct.

The DSR's clearly state that the supplier may not include terms and conditions which take away the consumer's statutory right to a FULL and unconditional refund. They may not make ANY deductions for a restocking fee or for repackaging. The consumer is under no obligation to return the items in their original packaging either. The suppliers T&C's cannot override the consumer's statutory rights and the supplier cannot impose conditions.

Actually it doesn't say that at all. Section 14

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).
(2) The reference in paragraph (1) to any sum paid on behalf of the consumer includes any sum paid by a creditor who is not the same person as the supplier under a personal credit agreement with the consumer.
(3) The supplier shall make the reimbursement referred to in paragraph (1) as soon as possible and in any case within a period not exceeding 30 days beginning with the day on which the notice of cancellation was given.
(4) Where any security has been provided in relation to the contract, the security (so far as it is so provided) shall, on cancellation under regulation 10, be treated as never having had effect and any property lodged with the supplier solely for the purposes of the security as so provided shall be returned by him forthwith.
(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.
(6) Paragraph (5) shall not apply where—
(a)the consumer cancels in circumstances where he has the right to reject the goods under a term of the contract, including a term implied by virtue of any enactment, or
(b)the term requiring the consumer to return any goods supplied if he cancels the contract is an “unfair term” within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999(1).
(7) Paragraph (5) shall not apply to the cost of recovering any goods which were supplied as substitutes for the goods ordered by the consumer.
(8) For the purposes of these Regulations, a personal credit agreement is an agreement between the consumer and any other person (“the creditor”) by which the creditor provides the consumer with credit of any amount.

There key wording in subsection 1 is "under or in relation to the contract", Therefore in accordance with the terms of the contract. The Seller is entitled to deduct cost of collection if the consumer was liable under contract to return the goods at their cost.

Now if the cancellation period has passed (granted i earlier incorrectly implied within the cancellation period, which is correct in relation to business to business sales) and the customer wants to return an non faulty item, they (the customer) do not have an automatic right to return the item, it is then when the seller is entitled at the sellers discretion if they:

1. Accept the goods and issue a full/partial refund.
2. Charge a restocking fee to cover the cost the seller incurs for taking back the unwanted item and for its repackaging needed before seller is able to resell the product.

Distance selling regulations no longer apply once the cancellation period has passed and no written notice of cancellation was received by the seller within the cancellation period - There is nothing stopping a seller from charging restocking fees on returned items that are returned purely because they are no longer required if it is in the terms and conditions.

Anyway the above doesn't apply to you as the seller was in breach of section 13 of the sales or goods act 1979. As the product description clearly stated that the missing parts were included. As such the seller is in breach of contract and you are therefore entitled to a full refund as a result of the sellers breach of the sales of goods act.

I would print out a copy of the items description or email it to the seller telling him you have a screen shot (photo) of the description as it appears on his website. Make it clear to the seller that as it clearly states the missing parts were included "supplied with single row wire hanging kit", as those items were missing then the product is not as discribed and therefore in breach of the section 13 "sale by description" of the sales of goods act 1979 and is a breach of contract too. As the item does not comply with the description. As such you are entitled to either a full reimbursment of the goods and the seller to arrange collection of the goods at the sellers costs as a result of their breach of contract. Or for the seller to send you at their costs the missing parts in order for the seller to rectify their breach of contract. Give the seller 7 days to comply making it clear the legal action MAY follow without further notice should they fail to comply.

And yes in reference to cancellation an order in general where the order is cancelled on grounds of being no longer required. Then Yes the seller is entitled to withold the refund untill they have the goods back in their possession.

[Redletter]

Re: Section 75 yes or no?

Thanks to all for advice.
To clarify I have already expressed my wish to cancel both by email and by recorded delivery of 27th September.
Both have been acknowledged.

This came last;
Dear <Redletter>
I have made you aware of my position many times you also need to check your information carefully as they and I quote are no means law they are meant as a guide only for the facts of law please consult a legal advisor un quote. Those GUIDES also point out that they do not apply to computer software were the seal has been broken by the consumer used and installed by definition the whole unit is computer software and you clearly broken the seal used and installed the software!!
As I pointed out I have forward the query to my OATA (as i am a member) to pass onto my FREE legal advisor so I suggest you EMPLOY your own legal adviser if you to Pursue your course of action. As you wish not to take calls to discuss the matter I will no longer explain myself time and time again.

Kind Regards (Supplier)





in answer to this below;

Dear Supplier,
You say in your opinion I am dishonest. Can you tell me how you arrive at this conclusion?I am not the one trying to mislead my customers with lies and unlawful terms which clearly restrict the customers' rights despite your claim that they will not!I have done nothing but provide the facts and your blatant disregard for legislation does not exempt you from being bound by its requirements in law.Please read the following and then consider your position.The fact is you are required by law to obey the legislation regardless of whether or not you agree with it.Please explain to me why you think the law does not apply to you?Are you refusing to comply with consumer law? I would once again ask that you grant me a full refund, at which time I fully intend to return the goods as promised. I give you my assurance that the goods have only been inspected and tested and not damaged in any way. They were simply tested and then placed back in the original packaging, which is not a requirement or condition of a refund in any case! In actual fact you cannot claim that the box was complete and sealed, as the instructions were missing (confirmed by Vertex that there should have been some in the box), and you have obviously opened the box in order to place the V-Link inside it which you indicated you were including as a gift. Therefore the box had already been opened anyway! However, this is irrelavent as per pages 26 and 27 which clearly outline that I have the right to open and test the goods! For the avoidance of doubt I have attached the source of the following information, and I will keep a record of all correspondence so that if and when this matter is escalated, the court will be able to see that I have complied fully with MY obligations as defined in the afore mentioned Regulations. PAGE32:

The Consumer Protection (Distance Selling)Regulations 2000 (DSRs)

The DSRs implement European Council Directive (97/7/EC)and, for most goods and services, provide additional rights toconsumers buying at a distance to encourage confidence in thismethod of buying.The protection the DSRs offer is important because customerscannot inspect goods or services before they buy when they shopat a distance.The DSRs also contain provisions aimed at ensuring that businessesdo not use contractual terms that deny consumers their rights underthe DSRs, or impose obligations on consumers that are inconsistentwith them.All member states of the European Union (EU) must implement theDirective in their national legislation. The DSRs came into force on31 October 2000 and were amended by SI 689/2005 effective from

6 April 2005.

PAGE26:DSRs do not link cancellation rights with your ability to resell itemsas new. Unless the item falls under the cancellation exemption,customers can cancel a contract and return the goods to you evenif they have opened and tested the goods and, as a result, you areunable to resell them.

PAGE27:

Packaging

The purpose of the DSRs is to allow customers to examine goodsthey have ordered as they would in a shop. If that requires openingthe packaging and trying out the goods, then they have not breachedtheir duty to take reasonable care of the goods.In these circumstances, you cannot insist that customers return thegoods as new or in their original packaging. You may ask customersto take care when they open the package or return goods with theoriginal packaging, but you cannot insist on this.The DSRs do not provide for goods to be returned in a fit state

for resale.

PAGE28:

Refunding a cancelled order

You should refund a customer’s money as soon as possible afterthey cancel an order, and in any case, within 30 days at the latest.The right to a refund is not connected either to the return of theproduct nor the customer’s duty to exercise reasonable care of

the goods.

You must refund the customer’s money even if you have not yetcollected the goods or had them returned to you by the customer.

You cannot insist on receiving the goods before you make a refund.

PAGE29:

Who pays for returning the goods if the customer cancelsan order?

If you want the customer to return the goods and to pay for thatreturn, you must make it clear in the contract and as part of therequired written information. If you did not include these details in

the required written information then you cannot charge anything.

I must again express my disappointment at your change in attitude and your unproffessional conduct in this matter. It seems you were happy to be nice and polite to me when you were taking my order and my money. But now that I have requested to cancel my contract with you, and obtain a refund, which I am perfectly within my rights to do so you have completely changed and become arrogant and rude towards me, even accusing me of stealing!
Its a real shame as this project is only postponed not written off and when it does finally get off the ground I will take my custom elsewhere. Had you just honoured my right to cancel my contract and not insisted that you somehow have the right to adapt the regulations to your advantage, I would probably have re-ordered with you at some later date and as I said before would have most probably made you my preferred supplier. You simply do not have the right to insist on return of the items or to give a refund 'at your discretion'! It is your legal obligation to do so.

I trust this clarifies the situation and I await my refund in full.

Kind Regards,

(Redletter)


This was the email I received prior to the last one...

"You have been offered a refund many times upon me receiving the goods never
have I said you would not I have already given you goods in good faith once
and you will honour your purchase agreement I will not do that again as you
are quite clearly not a honest person (in my opinion). As I pointed out that
a refund WILL BE GIVEN once I can confirm that you have in no way damaged
the goods that you have received AND USED!!!. So you may go through all the
legislation you wish but that is the fact."

[wales01man]

Re: Section 75 yes or no?

Im thinking until one of you gives in you will have the goods and the supplier the money if i had been put in this position by a customer i would not have claimed they were in any way dishonest i simply would have said many are, good luck with your claim but i think this might go legal

[teaboy2]

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.

[Redletter]

Re: Section 75 yes or no?

Actually it doesn't say that at all. Section 14

There key wording in subsection 1 is "under or in relation to the contract", Therefore in accordance with the terms of the contract. The Seller is entitled to deduct cost of collection if the consumer was liable under contract to return the goods at their cost. [This is for the cost of postage back to the supplier but only applies if in the T&C's AND the T&C's were provided in 'durable form' once the consumer agrees to buy from the supplier]
Now if the cancellation period has passed [It has so my question is in relation to my situation] (granted i earlier incorrectly implied within the cancellation period, which is correct in relation to business to business sales) and the customer wants to return an non faulty item, they (the customer) do not have an automatic right to return the item, it is then when the seller is entitled at the sellers discretion if they:

1. Accept the goods and issue a full/partial refund.
2. Charge a restocking fee to cover the cost the seller incurs for taking back the unwanted item and for its repackaging needed before seller is able to resell the product.

Distance selling regulations no longer apply once the cancellation period has passed and no written notice of cancellation was received by the seller within the cancellation period [In my case the supplier has acknowledged my cancellation request within the 7 days] - There is nothing stopping a seller from charging restocking fees on returned items that are returned purely because they are no longer required if it is in the terms and conditions.[Provided the terms and conditions were provided in durable form ie a letter or email which the consumer can keep. T&C's on a website are not considered to be adequate as these can be changed by the supplier at any time after the contract has been made]

Anyway the above doesn't apply to you as the seller was in breach of section 13 of the sales or goods act 1979. As the product description clearly stated that the missing parts were included. As such the seller is in breach of contract and you are therefore entitled to a full refund as a result of the sellers breach of the sales of goods act.

I would print out a copy of the items description or email it to the seller telling him you have a screen shot (photo) of the description as it appears on his website. Make it clear to the seller that as it clearly states the missing parts were included "supplied with single row wire hanging kit", as those items were missing then the product is not as discribed and therefore in breach of the section 13 "sale by description" of the sales of goods act 1979 and is a breach of contract too. As the item does not comply with the description. As such you are entitled to either a full reimbursment of the goods and the seller to arrange collection of the goods at the sellers costs as a result of their breach of contract. Or for the seller to send you at their costs the missing parts in order for the seller to rectify their breach of contract. Give the seller 7 days to comply making it clear the legal action MAY follow without further notice should they fail to comply. [I would rather not now that I have seen this supplier's attitude to his legal obligations I don't wish to keep the goods, as I would suspect I would have problems in the future should any warranty issues arise]

And yes in reference to cancellation an order in general where the order is cancelled on grounds of being no longer required. Then Yes the seller is entitled to withold the refund untill they have the goods back in their possession. [So why does it say on the OFT website that the obligation to an unconditional refund is not linked to the return of the goods?]

I have also read on another legal advice website (out-law.com) as per post 13 above, that this is not the case.

[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.

No I use the term project as I was building my own aquarium cabinet I am not a business.

[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.

Also as I understand it, under the DSR's I am entitled to cancel without a reason and to an unconditional refund. Therefore as I have given notice of my wish to exercise that right, then surely I don't need to depend upon the SOGA.
The notice has been given and the seller must now give an unconditional refund.
If I have to rely on SOGA then what would be the point of DSR's?

My original question was really with regard to whether Section 75 applies when the supplier is in breach of DSR's, so that I may approach the Credit Card company for a refund if the supplier doesn't cough up?

[Redletter]

Re: Section 75 yes or no?

Or can I request a chargeback?

[Redletter]

Re: Section 75 yes or no?

If he has agreed to give the full refund on return and fails you can then claim under section 75, record all deliveries, correspondence, ensure you have a clear paper trail, notice i said payed directly, won't work if you have payed through a third party.

D

He has only agreed to give a refund "if the light is returned free from damage" He could claim it was damaged. However, I have taken photographs at various stages of packing the unit showing each of the components such as power packs etc and also placed a copy of the front page of the days newspaper to show that it was packaged after the date of my emails to show that it was not damaged when I made the cancellation request either.
Also he is still insisting the refund will be at his discretion.

[wales01man]

Re: Section 75 yes or no?

How can you get a chargeback when your holding onto the goods? Remember the seller has stated that on returning the goods a refund will follow

[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.

Can you please tell me where your reference is for this statement as I have read the OFT guides and according to them the right to a refund is not linked to the return of the goods and must be made within 30 days of the cancellation of the contract?

[labman]

Re: Section 75 yes or no?

Or can I request a chargeback?

See Post 3 and DavyB's subsequent post. Why do you think I asked that question?

[Redletter]

Re: Section 75 yes or no?

Right to cancel

10.—(1) Subject to regulation 13, if within the cancellation period set out in regulations 11 and 12, the consumer gives a notice of cancellation to the supplier, or any other person previously notified by the supplier to the consumer as a person to whom notice of cancellation may be given, the notice of cancellation shall operate to cancel the contract.
(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made. [This would mean that no deductions can be made from the buyers money as this would not leave him in the position he was in prior to the sale!]