Section 75 yes or no?

[Redletter]

Re: Section 75 yes or no?

Regulation 17
(9) Where any security has been provided in relation to the cancelled contract, the duty to restore goods imposed on the consumer by this regulation shall not be enforceable before the supplier has discharged any duty imposed on him by regulation 14(4) to return any property lodged with him as security on cancellation

I would interpret the above 'security' as my money!!

[Redletter]

Re: Section 75 yes or no?

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

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.

[Redletter]

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

Yes I see what you mean, I am just a little dubious as he has not stated a FULL refund will follow!

[Redletter]

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?

The way I understood it was that the DSR's require the seller to give the refund but then if the buyer does hold on to the goods, the seller can make a seperate claim for breach of contract against the purchaser having fulfilled his obligations to give the refund.

[teaboy2]

Re: Section 75 yes or no?

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

As per terms and conditions they do not have to be provided in durable form. In law it is the consumers responsability to read the terms and conditions prior to making a purchase.

As for witholding sums as security. Well funds exchanged for goods are not a security, they are the price of the goods. Security is regarding finance agreements where they are secured against a property or deposits paid for goods ordered but not yet received. Its not the price paid for goods. In this case the seller did not take any security in exchange for the goods as such their is no security for him to discharge himself off.

Also reference the seller not being permitted to delay the refund - All that means if the supplier must issue the refund within the required timescale of 30 days. In most cases the goods are usually returned by the consumer or collected by the supplier within 30 days from the date of notice of cancellation and refund issued once goods are returned or collected. If the goods are not returned due to the buyers unreasonableness to agree to returning them (if stated in the contract that it is for them to return at their cost), or where the buyer refuses for the goods to be collected, then the seller has the right to not issue a refund and deem you to have accepted the goods. Basically asking for a refund whilst refusing to return or allow collection of goods is unreasonable and leaves the seller open to incur a financial loss to the value goods sale price, which would allow the seller to take you to court for fraud or theft if they had issued the refund and the goods were not returned or buyer refused to allow collection.

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

Ok

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?

Yes section 75 applies, but the seller will likely take action against you if you fail to return the goods and will likely dispute the charge back with your card company and inform them he offered you a refund in full once the goods were returned but your refusing to return them and as such the card company will simply agree with him. The strongest legal argument you have is that the goods were not as described which falls under the sales of goods act 1979. Your whole issue is about the goods not being as described - e.g. missing parts which were described as being included. All you are doing with bringing the DSR into it is simply adding pointless arguements that only serve to complicate the real issue here, as the sales of goods act covers your legal position entirely here not the DSR as all that does is support your right to cancel.

Or can I request a chargeback?

Yes but as i said above given they have offered to give you a full refund upon the return of the goods its likely the card company will agree with the seller.

[wales01man]

Re: Section 75 yes or no?

I would love to see this to its conclusion my money would be on goods returned money refunded whether the OP gives in or it goes legal cannot see any way out after all the seller has the money and the chances of chargeback are i think zero

[Guest]

Re: Section 75 yes or no?

Yes i think that the way forward ids to return the item. THis is from the new consumer directive, doesn't come into force until next year but as you see it is of the same opinion.(3)

Article 13
Obligations of the trader in the event of withdrawal
1. The trader shall reimburse all payments received from the consumer, including, if
applicable, the costs of delivery without undue delay and in any event not later
than 14 days from the day on which he is informed of the consumer's decision to withdraw
from the contract in accordance with Article 11.
The trader shall carry out the reimbursement referred to in the first subparagraph using the
same means of payment as the consumer used for the initial transaction, unless the
consumer has expressly agreed otherwise and provided that the consumer does not incur
any fees as a result of such reimbursement.
2. Notwithstanding paragraph 1, the trader shall not be required to reimburse the
supplementary costs, if the consumer has expressly opted for a type of delivery other than
the least expensive type of standard delivery offered by the trader.
3. Unless the trader has offered to collect the goods himself, with regard to sales contracts,
the trader may withhold the reimbursement until he has received the goods back, or until
the consumer has supplied evidence of having sent back the goods, whichever is
the earliest.

D

[Redletter]

Re: Section 75 yes or no?

As per terms and conditions they do not have to be provided in durable form.In law it is the consumers responsability to read the terms and conditions prior to making a purchase.Written and additional information

8.—(1) Subject to regulation 9, the supplier shall provide to the consumer in writing, or in another durable medium which is available and accessible to the consumer, the information referred to in paragraph (2), either—
(a)prior to the conclusion of the contract, or
(b)thereafter, in good time and in any event—
(i)during the performance of the contract, in the case of services; and
(ii)at the latest at the time of delivery where goods not for delivery to third parties are concerned.
(2) The information required to be provided by paragraph (1) is—
(a)the information set out in paragraphs (i) to (vi) of Regulation 7(1)(a);
(b)information about the conditions and procedures for exercising the right to cancel under regulation 10, including—
(i)where a term of the contract requires (or the supplier intends that it will require) that the consumer shall return the goods to the supplier in the event of cancellation, notification of that requirement; and
(ii)information as to whether the consumer or the supplier would be responsible under these Regulations for the cost of returning any goods to the supplier, or the cost of his recovering them, if the consumer cancels the contract under regulation 10;
(c)the geographical address of the place of business of the supplier to which the consumer may address any complaints;
(d)information about any after-sales services and guarantees; and
(e)the conditions for exercising any contractual right to cancel the contract, where the contract is of an unspecified duration or a duration exceeding one year

As for witholding sums as security. Well funds exchanged for goods are not a security, they are the price of the goods. Security is regarding finance agreements where they are secured against a property or deposits paid for goods ordered but not yet received. Its not the price paid for goods. In this case the seller did not take any security in exchange for the goods as such their is no security for him to discharge himself off.

Also reference the seller not being permitted to delay the refund - All that means if the supplier must issue the refund within the required timescale of 30 days. In most cases the goods are usually returned by the consumer or collected by the supplier within 30 days from the date of notice of cancellation and refund issued once goods are returned or collected. If the goods are not returned due to the buyers unreasonableness to agree to returning them (if stated in the contract that it is for them to return at their cost), or where the buyer refuses for the goods to be collected, then the seller has the right to not issue a refund and deem you to have accepted the goods.[Where does this come from? Surely if I have given notice of cancellation the refund has to be made within 30 days! As per previous posts the right to a refund is not linked to the return of the goods] Basically asking for a refund whilst refusing to return or allow collection of goods is unreasonable and leaves the seller open to incur a financial loss to the value goods sale price, which would allow the seller to take you to court for fraud or theft if they had issued the refund and the goods were not returned or buyer refused to allow collection.


Restoration of goods by consumer after cancellation

17.—(1) This regulation applies where a contract is cancelled under regulation 10 after the consumer has acquired possession of any goods under the contract other than any goods mentioned in regulation 13(1)(b) to (e).
(2) The consumer shall be treated as having been under a duty throughout the period prior to cancellation—
(a)to retain possession of the goods, and
(b)to take reasonable care of them.
(3) On cancellation, the consumer shall be under a duty to restore the goods to the supplier in accordance with this regulation, and in the meanwhile to retain possession of the goods and take reasonable care of them.
(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.




Ok



Yes section 75 applies, but the seller will likely take action against you if you fail to return the goods and will likely dispute the charge back with your card company and inform them he offered you a refund in full once the goods were returned but your refusing to return them and as such the card company will simply agree with him. The strongest legal argument you have is that the goods were not as described which falls under the sales of goods act 1979. Your whole issue is about the goods not being as described - e.g. missing parts which were described as being included. All you are doing with bringing the DSR into it is simply adding pointless arguements that only serve to complicate the real issue here, as the sales of goods act covers your legal position entirely here not the DSR as all that does is support your right to cancel.



Yes but as i said above given they have offered to give you a full refund upon the return of the goods its likely the card company will agree with the seller.

I would still say that if OFT guide says the right to refund is not linked to the return of the goods he would have to sue me for non return and that is a separate issue

[wales01man]

Re: Section 75 yes or no?

If that was in force now would have saved a lot of anguisk for the OP seems like common sense to me how about everone else?

[Redletter]

Re: Section 75 yes or no?

Yes i think that the way forward ids to return the item. THis is from the new consumer directive, doesn't come into force until next year but as you see it is of the same opinion.(3)

Article 13
Obligations of the trader in the event of withdrawal
1. The trader shall reimburse all payments received from the consumer, including, if
applicable, the costs of delivery without undue delay and in any event not later
than 14 days from the day on which he is informed of the consumer's decision to withdraw
from the contract in accordance with Article 11.
The trader shall carry out the reimbursement referred to in the first subparagraph using the
same means of payment as the consumer used for the initial transaction, unless the
consumer has expressly agreed otherwise and provided that the consumer does not incur
any fees as a result of such reimbursement.
2. Notwithstanding paragraph 1, the trader shall not be required to reimburse the
supplementary costs, if the consumer has expressly opted for a type of delivery other than
the least expensive type of standard delivery offered by the trader.
3. Unless the trader has offered to collect the goods himself, with regard to sales contracts,
the trader may withhold the reimbursement until he has received the goods back, or until
the consumer has supplied evidence of having sent back the goods, whichever is
the earliest.

D

Well I would welcome this directive as it simplifies the matter somewhat. Also means you get your money back quicker too!

[Redletter]

Re: Section 75 yes or no?

If that was in force now would have saved a lot of anguisk for the OP seems like common sense to me how about everone else?

Totally agree. TBH part of the reason I have held on to the goods is because according to the OFT guides I appeared to have the right to do so.

Forgetting all of the above regards SOGA and Section 75, if I now send the goods back and this trader decides to be obstructive and claims that the goods were not in pristine condition (which they are!) where do I stand?

The whole point of the DSR's is to enable distance buyers the option to inspect the goods at home so to say that I cannot open the box is in my eyes a totally unreasonable and unfair term within the suppliers T&C's.

As far as I can see, the facts are that the notice of cancellation has been given and that, because the supplier failed to provide his terms in durable form with regard to returns etc, then he must bear the cost of returning the goods. He has the right to request that he may collect the goods at his own expense. He must in any case refund all monies and return me to my pre-contract position within the 30 days.

[Redletter]

Re: Section 75 yes or no?

PAGE29 of OFT Guide to DSR's)

Who pays for returning the goods if the customer cancels an order?

If you want the customer to return the goods and to pay for that return, 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.

[Redletter]

Re: Section 75 yes or no?

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 the product nor the customer’s duty to exercise reasonable care of

the goods.

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

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

[Redletter]

Re: Section 75 yes or no?

http://www.oft.gov.uk/shared_oft/bus...ral/oft913.pdf

[teaboy2]

Re: Section 75 yes or no?

As per terms and conditions they do not have to be provided in durable form.In law it is the consumers responsability to read the terms and conditions prior to making a purchase.Written and additional information

8.—(1) Subject to regulation 9, the supplier shall provide to the consumer in writing, or in another durable medium which is available and accessible to the consumer, the information referred to in paragraph (2), either—
(a)prior to the conclusion of the contract, or
(b)thereafter, in good time and in any event—
(i)during the performance of the contract, in the case of services; and
(ii)at the latest at the time of delivery where goods not for delivery to third parties are concerned.
(2) The information required to be provided by paragraph (1) is—
(a)the information set out in paragraphs (i) to (vi) of Regulation 7(1)(a);
(b)information about the conditions and procedures for exercising the right to cancel under regulation 10, including—
(i)where a term of the contract requires (or the supplier intends that it will require) that the consumer shall return the goods to the supplier in the event of cancellation, notification of that requirement; and
(ii)information as to whether the consumer or the supplier would be responsible under these Regulations for the cost of returning any goods to the supplier, or the cost of his recovering them, if the consumer cancels the contract under regulation 10;
(c)the geographical address of the place of business of the supplier to which the consumer may address any complaints;
(d)information about any after-sales services and guarantees; and
(e)the conditions for exercising any contractual right to cancel the contract, where the contract is of an unspecified duration or a duration exceeding one year

As for witholding sums as security. Well funds exchanged for goods are not a security, they are the price of the goods. Security is regarding finance agreements where they are secured against a property or deposits paid for goods ordered but not yet received. Its not the price paid for goods. In this case the seller did not take any security in exchange for the goods as such their is no security for him to discharge himself off.

Also reference the seller not being permitted to delay the refund - All that means if the supplier must issue the refund within the required timescale of 30 days. In most cases the goods are usually returned by the consumer or collected by the supplier within 30 days from the date of notice of cancellation and refund issued once goods are returned or collected. If the goods are not returned due to the buyers unreasonableness to agree to returning them (if stated in the contract that it is for them to return at their cost), or where the buyer refuses for the goods to be collected, then the seller has the right to not issue a refund and deem you to have accepted the goods.[Where does this come from? Surely if I have given notice of cancellation the refund has to be made within 30 days! As per previous posts the right to a refund is not linked to the return of the goods] Basically asking for a refund whilst refusing to return or allow collection of goods is unreasonable and leaves the seller open to incur a financial loss to the value goods sale price, which would allow the seller to take you to court for fraud or theft if they had issued the refund and the goods were not returned or buyer refused to allow collection.


Restoration of goods by consumer after cancellation

17.—(1) This regulation applies where a contract is cancelled under regulation 10 after the consumer has acquired possession of any goods under the contract other than any goods mentioned in regulation 13(1)(b) to (e).
(2) The consumer shall be treated as having been under a duty throughout the period prior to cancellation—
(a)to retain possession of the goods, and
(b)to take reasonable care of them.
(3) On cancellation, the consumer shall be under a duty to restore the goods to the supplier in accordance with this regulation, and in the meanwhile to retain possession of the goods and take reasonable care of them.
(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises. This applies only when the seller is collecting the goods. I.e. the seller can not ask you to deliver the goods to other premises so they can be picked up unless they have first made a written request to such effect and you have agreed to it. Section 3 is clear that you are under duty to restore the goods to the supplier. Therefore you have a duty to return the goods or allow for the seller to collect them.




Ok



Yes section 75 applies, but the seller will likely take action against you if you fail to return the goods and will likely dispute the charge back with your card company and inform them he offered you a refund in full once the goods were returned but your refusing to return them and as such the card company will simply agree with him. The strongest legal argument you have is that the goods were not as described which falls under the sales of goods act 1979. Your whole issue is about the goods not being as described - e.g. missing parts which were described as being included. All you are doing with bringing the DSR into it is simply adding pointless arguements that only serve to complicate the real issue here, as the sales of goods act covers your legal position entirely here not the DSR as all that does is support your right to cancel.



Yes but as i said above given they have offered to give you a full refund upon the return of the goods its likely the card company will agree with the seller.

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.