Section 75 yes or no?

[Redletter]

Re: Section 75 yes or no?

"we are unfortunately not obliged to give a refund under trading laws"Complete and utter rubbish!

[teaboy2]

Re: Section 75 yes or no?

Can I just clarify. I am not refusing to return the goods I am refusing to return them at my cost seeing as the seller didn't fulfill his obligations to provide WRITTEN details of his returns policy in durable form as required by the afore mentioned DSR's.I offered to return the goods at my own expense in the first instance but it is now more a matter of principle. I am honouring my obligation to take reasonable care of the goods and the seller may request that he collects the goods anytime he wishes.

That may be so, but is the seller aware that your willing to allow him to collect the goods or that you will return them at his expense? Given the emails you posted up it seems he seems to think your refusing to return or allow him to collect them till after hes refunded you. This is what you said in your email to him "I would once again ask that you grant me a full refund, at which time I fully intend to return the goods as promised" So as far as hes aware, your refusing to return the goods on that basis, despite him previously offering to refund you once goods were return and inspected for damage. Hes perfectly entiled to deduct any amount in reflection to cost of any damage when the products were in your care. Granted he can not withold refund, of any amount, on the basis the packaging was opened. As it clearly was not sealed packaging since he opened it to include addtional items inside it.

In anycase, all we can do now is wait see what he says his solicitor says. Though just so you know, he may instruct his solicitor to write to you about it instead.

[teaboy2]

Re: Section 75 yes or no?

"we are unfortunately not obliged to give a refund under trading laws"Complete and utter rubbish!

And where have you qouted that from? I wouldn't say it was rubbish as it would depend on the merits and circumstance in which a refund is being claimed. Though in your case it is likely rubbish since you cancelled within the cancellation period.

[Redletter]

Re: Section 75 yes or no?

Well based on what I have read, the supplier cannot make any deductions for anything from the refund amount and must sue separately
For any breach of consumer's duty to take reasonable care of the goods.

Maybe someone on here with adequate legal knowledge can verify this?

[Redletter]

Re: Section 75 yes or no?

And where have you qouted that from? I wouldn't say it was rubbish as it would depend on the merits and circumstance in which a refund is being claimed. Though in your case it is likely rubbish since you cancelled within the cancellation period.

It was rubbish in the context in which it came to me in reply to my notice of cancellation which was indeed within the cancellation period.

[teaboy2]

Re: Section 75 yes or no?

Well based on what I have read, the supplier cannot make any deductions for anything from the refund amount and must sue separately
For any breach of consumer's duty to take reasonable care of the goods.

Maybe someone on here with adequate legal knowledge can verify this?

Questioning my legal knowledge is not something i would advise you to do lightly. Reason being is simple. If the goods are damaged whilst in your care or in transit back to the seller then you are responable during that period. Therefore should they be damaged whilst in your reasonable care you have failed in your duty to take resonable care of the goods. As such the buyer is entitled to bill you for the cost of the damage as a seperate invoice, this may then be deducted from any refund or credit given. Contract law allows for the a party in the contract to collect costs incurred by them due to such damage whilst the product was still under your reasonable care, there is nothing in the DSR that prevents the seller deducting sums due for another invoice/transaction from a refund or credit note. Hence why the DSR says any sum free of charges, and not full amount paid free of charges. An invoice for cost of damage to product is not a charge as the seller is entitled to recover such costs under contractual law from the other party of the contract.

You also seem to forget one key point. You only have 21 days to return the goods under the DSR, where as the seller can wait upto 30 days to issue the refund. So regardless of whether you refuse to return the goods or not, if you do not return the goods within 21 days then you will find the seller will issue you a refund and a court claim against you on the same day where you will have to pay costs as well as return the goods or money equal to the value paid for the goods plus interest. So its a no win situation for you. Therefore its in your interest to return the goods within 21 days regardless.

The whole reason the creditor has 30 days to refund and you have only 21 days to return or allow the collection of the goods by the seller, is so that the seller can inspect the goods once returned to them which is deemed as an operational procedure. There can be no other reason for it.

This whole issues is nothing to do with a claim under DSR thats just a mere side issue you brought up about yourself. As i said before your claim here is under the sales of goods act 1979 section 13. All you had to do was simply call you credit card company and inform them you would like to do a charge back as the goods were not as described on the sellers website and bobs uncle job done. You will have then got your refund via charge back and would only then have to return the goods.

But no. you kick up a great big fuss arguing who should pay for returning the goods and when a refund should be issued. A completely pointless and time wasting argument. You would not stand a chance with getting a charge back using your argument here under the DSR. As like i said before all the seller has to tell your card company is he agreed to refund you once you returned or allowed collection of the goods. Plus he is still, i assume, within his 30 days to issue a refund. He would not have any argument to counter any charge back under the sales of goods act 1979 which i advised you was the best course of action.

So don't question my legal knowledge, when your the one thats not willing to listen to what is the best course of action for you to take and instead prefer to stubbornly and unreasonably argue other something, with the seller, that is a purely a de mininis issue (in legal terms) compared to the actual breach of section 13 of the sales of goods act 1979 by the seller, for which you have much stronger legal position over seller then you do with your de mininis issue of an argument on who should return or refund first. It's such a de minimis issue that you are the seller arguing about it is a kin to children arguing about who gets the swings first!!

Now if your statement was not intended to be spiteful towards me, then i apologise for my strong words. Though perhaps now you will see the light and see what you really should be doing, such as claiming a charge back under section 75 as a result of the sellers breach of section 13 of the sales of goods act 1979 as i guarantee you will then get your money back regardless of what the seller thinks or has said.

[teaboy2]

Re: Section 75 yes or no?

Well based on what I have read, the supplier cannot make any deductions for anything from the refund amount and must sue separately
For any breach of consumer's duty to take reasonable care of the goods.

Maybe someone on here with adequate legal knowledge can verify this?

Question my legal knowledge is not something i would advise you to do lightly. Reason being is simple. If the goods are damaged whilst in your care or in transit back to the seller then you are responable during that period. Therefore should they be damaged whilst in your reasonable care you have failed in your duty to take resonable care of the goods. As such the buyer is entitled to bill you for the cost of the damage as a seperate invoice, this may then be deducted from any refund or credit given.

You also seem to forget one key point. You only have 21 days to return the goods under the DSR, where as the seller can wait upto 30 days to issue the refund. So regardless of whether you refuse to return the goods or not, if you do not return the goods within 21 days then you will find the seller will issue you a refund and a court claim against you on the same day where you will have to pay costs as well as return the goods or money equal to the value paid for the goods plus interest.

The whole reason the creditor has 30 days to refund and you have only 21 days to return or allow the collection of the goods by the seller, is so that the seller can inspect the goods once returned to them.

This whole issues is nothing to do with a claim under DSR thats just a mere side issue you brought up about yourself. As i said before your claim here is under the sales of goods act 1979 section 13. All you had to do was simply call you credit card company and inform them you would like to do a charge back as the goods were not as described on the sellers website and bobs uncle job done. You will have then got your refund via charge back and would only then have to return the goods.

But no. you kick up a great big fuss arguing who should pay for returning the goods and when a refund should be issued. A completely pointless and time wasting argument. You would not stand a chance with getting a charge back using your argument here under the DSR. As like i said before all the seller has to tell your card company is he agreed to refund you once you returned or allowed collection of the goods. Plus he is still, i assume, within his 30 days to issue a refund. He would not have any argument to counter any charge back under the sales of goods act 1979 which i advised you was the best course of action.

So don't question my legal knowledge, when your the one thats not willing to listen to what is the best course of action for you to take and instead prefer to stubbornly and unreasonably argue other something, with the seller, that is a purely a de mininis issue (in legal terms) compared to the actual breach of section 13 of the sales of goods act 1979 by the seller, for which you have much stronger legal position over seller then you do with your de mininis issue of an argument on who should return or refund first. It's such a de minimis issue that you are the seller arguing about it is a kin to children arguing about who gets the swings first!!

Now if your statement was not intended to be spiteful towards me, then i apologise for my strong words. Though perhaps now you will see the light and see what you really should be doing, such as claiming a charge back under section 75 as a result of the sellers breach of section 13 of the sales of goods act 1979 as i guarantee you will then get your money back regardless of what the seller thinks or has said.

Thats the last i will say on this matter, whether you agree with me or not.

[Redletter]

Re: Section 75 yes or no?

Refunding a cancelled order

You should refund a customer’s money as soon as possible after they 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. Even if the customer fails to take reasonable care of the goods, you must make a full refund. You can bring a claim for damages separately.
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/business-advic...e/dsrexplained

[wales01man]

Re: Section 75 yes or no?

Forget the rights and wrongs of all the laws and regs you sre at a standoff wth the retailer,if you think or know your right you will be forced to go legal as i said before this will incur costs the retailer will claim any costs against tax as a business expence can you when i was selling on the net if a case like this had occured noway would i give in NO return goods NO refund same as any high street retailer commonsense would say return the goods with copies of photos of them in good condition when they left you either you will get full refund or you can ask for chargeback the evidence of returning goods in good condition will help your case if they dont return the payment then go legal in the correct way sending emails back and forth between the pair of you is nonsense he sees the rules different to you all teaboy says makes sense send it back get refund and carry on is all this crap really worth it . I think the seller is laughing his head of at it all?

[teaboy2]

Re: Section 75 yes or no?

Refunding a cancelled order

You should refund a customer’s money as soon as possible after they 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. Even if the customer fails to take reasonable care of the goods, you must make a full refund. You can bring a claim for damages separately.
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.

Pointless post - You still have a duty to return goods within 21 days of cancelling regardless of whether it takes 1 day or 30 days for a sellar to refund.

Heres something you yourself qouted form www.out-law.com

If, within 21 days following cancellation of the distance contract, the supplier requests the consumer to return the goods and the consumer unreasonably refuses or unreasonably fails to comply with the request, the consumer's obligation to retain possession and take reasonable care of the goods continues until he delivers the goods to the supplier.

Therefore as the seller has requested you to return the goods, or allow for collection, already you should comply regardless of whether a refund has been issued yet or not (as you said the refund is not connected to the return of the goods, it works both ways you know!!) - Otherwise, like i said earlier the supplier will simply issue a refund on the 30th day and a commence legal action for the recovery of the goods, or value off, on the same day or on the day after - Which would prove very costly for you, as it would include court costs, legal fees and possibly bailiff fees.

Now for a third and last time - This is a issue under section 13 of the sales of goods act 1979 and all you have to do is claim a charge back for the sellers breach of section 13 sales of goods act 1979. THIS IS NOT A DSR ISSUE. You made a fuss over nothing regarding the DSR (therefore creating a side issue of your own making) with the seller, and all its done is lead you into a situtation where if you hadn't made a fuss and simply returned the goods like 95% of people in your situation would have done, then you would have had your refund days ago - GET IT!!!!

I have given you what you need to know in order to get your refund. So carrying on this childish argument about who does what first under the DSR isn't going to do you any favours here nor would it in court either. Its a pointless, de mininis and unproductive legal argument that is not going to get you anywhere, when compared to a claim under section 13 sales of goods act 1979. In court a judge would given the situation and the facts of the case, deem you dispute other who does what first under the DSR as unreasonable behaviour on your part as it clearly has done nothing but delayed the process of the return of goods and the refunding of your money. And in a judges eye, you would be the cause of that delay and therefore that will go against you in court.

Now i must also state, that despite me telling you 3 times what you need to do and you still continue to argue under the DSR, then it makes me think your trying to wriggle out of sending the goods back whilst wanting to get your money back at the same time. Maybe your reluctant to send them back first due to all parts being included despite your claim to the contary, or because the seller can prove all parts described as being included are included. Because thats the impression am getting now when you try to continue a fruitless DSR argument that in reality has only delayed your getting a refund as a result of you arguing with the seller the same points - Hardly a clever thing to do is it!

Perhaps your last post was purely vengeful in an attempt to discredit me. Not the sort of thing i would do to the person that has told you all that you need to no about how to get your money back. Therefore if it was meant to descredit me in someway, then it only serves to shows others your own true colours.

Oh and by the way, Contract law gives the seller the right to recover costs incurred by them for damage to goods, from you, and all he has to do is invoice you for the damage seperately and then deduct it from the refund. And nothing in the DSR prevents that, as legally you are liable under contract to pay the cost incurred by the other party for your breach of contract as well as damaged substained to goods whilst under your legal liability for the goods under the DSR whilst they are in your reasonable care. Which in this case would be breach of your duty to reasonable care if goods were damaged in your care - Same applies if item was used and therefore deminishes the items value. Granted the seller can not charge you extra for opening the packaging (unless allowed under the DSR). They can for any other damage to the product itself caused by misuse or in return transit to the seller.

That is why the seller has requested you to return the items or allow collection (which you must do so within 21 days of cancellation when requested to by the seller) and stated his wish to inspect them so he can ascertain and document any damage or sign the goods were used. If they are not damaged by you or were not used, then i can not see why your so worried about the seller not giving you a full refund, as he would have no option but too refund you in full if the goods are not damaged or were not used. Otherwise it would be the seller that faced court action from you!

Granted you said your more than happy for the seller to collect the goods or for you to return the goods at the sellers costs, but thats not what you stated originally. As originally you refused point blank to return goods (and likely to allow collection) untill after you first received a refund in full. The fact you choose to continue to argue who does what first under the DSR reference returning and refunding, says to me you still do not wish to return the goods until you have already got your refund. If that is the case and if you continue to stick with such stance, then as i said the seller will likely issue a refund on the last day of the 30 days and issue legal proceedings for the goods or value of the goods (likely the value of the goods i.e sale price) on the same day or the day after. Leaving you with no room to maneuver and leaving you no choice but to either defend in court, or return the goods and pay the sellers legal costs for issuing the court claim and his solicitors fees if any. I use the exact same manauvre on one of my customers who was not a business, and guess what i won, although the customer upon realising he had no chance of winning since he had failed to return the goods choose to settle out of court, turned out he'd damaged the goods via misuse within days of receiving them! So your playing a very dangerous and likely costly game here. So your previous unreasonable refusal to return or allow collection (which would have likely cost you no more than £10 to return goods) is leading you in to what is known as a legal ambush, that will prove even more costly to you.

Yes you are right it is for the seller to collect the goods and/or pay for the return of goods, unless stated otherwise in the terms and conditions, but as you have written communication to him refusing to return goods or allow collection till you first receive a refund you have left yourself facing a legal blackhole. Yes you might get lucky and the seller may refund you well within the 30 days they are allowed. In which case you should count yourself bloody lucky and dam well make sure you return the goods and reasonable condition and undamaged and prey they are not damaged/lost in transit as whilst in transit back to the seller you are still under your obligation of reasonable care - You can not argue otherwise as thats the law infact the DSR says so, so wouldn't it be ironic is they were damaged or lost in transit whilst on the way back to the seller, as that would mean you owing the seller the full value of the goods or paying the cost for the damage.

But at the end of the day, you have the power under section 13 sales of goods act 1979 to get your refund right now via section 75 charge back request - That is of course if your telling us the truth and parts described as included were indeed missing!

So if you are being truthful with us then for gods sake instigate the charge back for the sellers breach of section 13 sales of goods act 1979 and stop posting pointless arguments under the DSR that clearly only makes your situation worse and has only served your cause to the effect that its preventing you getting the refund. Which you will have had by now if you had not started this petty and pointless side arguement.

Your question was "Section 75, yes or no?" I've given you your answer so go and use it to get your refund via charge back as per your legal right and entitlement to do so!!!

Just because you have clearly been doing some keyboard research (though i perfectly understand your desire to learn and stand up for your rights, and theres nothing wrong with that), it doesn't by any means make you right. Your forgetting (or likely are not aware off) the key things in law, just because what you read may support you view, how you have interpretated it may not be correct e.g. it may seem to support your view but when other variables and law are consider it may not support you at all. So your not accounting for other variables, laws and case law that may apply. Thats what makes keyboard researchers like you different to people like i that actually spend time reading up on law, case laws, legislations and researching countless variables that may apply (granted i don't know everything but then it would be impossible for me or anyone too). Some of which i have pointed out here such as how the seller may proceed when issuing the refund - Which is just one variable that you haven't considered, you can not simply read the legislation and think "oh great, thats on my side so am right" and then just assume thats it, job done, don't need to do anything else. So your taking a gamble and its a hell of a big gamble, which if it goes against you, it will not end well and will prove very costly to you. Put it this way it may possibly cost you more than the goods themselves did if you continue to carry on being stubborn and think you can defend in court with the DSR as your defence all because you thought ""oh great, thats on my side so am right" and then just assume thats it, job done, don't need to do anything else.

Now i know i said that i would not reply in my last post, therefore this will indeed be my last post in this thread. Whether you listen to my advice or not, whether you agree with me or not, or whether you think your more legally knowledgable after just a few hours of keyboard research then i am. When i've had 1,000's of hours study and research, and 1,000's of hours or working with sales contracts and DSR and have numerous first hand experience of such complaints under the DSR and have never been foul of them. Then thats your choice - But don't expect me or anyone to help you further on this thread if you continue your pointless DSR side issues on this thread, especially when i have already given you the answer you needed, 3 times in i gave you the answer, the first time was about 3 pages back i believe.

[Redletter]

Re: Section 75 yes or no?

Teaboy2 I appreciate what you are saying but the whole point of my initial post was to verify whether or not Section 75 applies to this case hence the title 'Section 75 Yes or No'.
Maybe I haven't worded it correctly or maybe the point has been missed but as I pointed out early on in this conversation, I no longer wish to keep the goods as, due to the seller's obvious disregard for a consumer's rights, I cannot be confident that he would honour any warranty claims at any point in the future. This is an almost £1700 piece of kit I ordered and should anything go wrong with it at a later date I cannot afford to replace it purely because the seller refuses to acknowledge consumer rights!
So this is why the DSR's ARE COMPLETELY RELEVANT to me!
The DSR's supposedley give a right to a refund within the 7 day cancellation period without the buyer needing to give a reason (as I understand this), whereas if I claim under SOGA, that the goods are not as described, then all the seller has to do in order to make the goods compliant is to send me the hanging kit!
Therefore I am in my opinion I am better off using the route of the DSR's as I have the right to cancel the contract without giving a reason.

However, the whole point of my original post was to ask, upon excercising my right to cancellation and a refund, and the supplier refusing that right, can I then make a claim using Section 75 on the basis that the supplier is in breach of contract by not granting me a refund UNDER THE DSR's????
So in that respect my reference to the DSR's is totally relevant to my question!

As for your likening of this to playground squabbles, if it does appear to come across like that I am being taken completely out of context, I am just purely giving my opinion and interpretation of the guidelines in the same way as anyone else is.
I apologise, Teaboy2 if you regarded my comment as somehow implying that you were lacking knowledge what I meant by that was maybe someone with more experience/knowledge was looking in on this and could clarify. Not at all suggesting otherwise.
I hope that clarifies the matter.

[teaboy2]

Re: Section 75 yes or no?

Teaboy2 I appreciate what you are saying but the whole point of my initial post was to verify whether or not Section 75 applies to this case hence the title 'Section 75 Yes or No'.
Maybe I haven't worded it correctly or maybe the point has been missed but as I pointed out early on in this conversation, I no longer wish to keep the goods as, due to the seller's obvious disregard for a consumer's rights, I cannot be confident that he would honour any warranty claims at any point in the future. This is an almost £1700 piece of kit I ordered and should anything go wrong with it at a later date I cannot afford to replace it purely because the seller refuses to acknowledge consumer rights!
So this is why the DSR's ARE COMPLETELY RELEVANT to me!
The DSR's supposedley give a right to a refund within the 7 day cancellation period without the buyer needing to give a reason (as I understand this), whereas if I claim under SOGA, that the goods are not as described, then all the seller has to do in order to make the goods compliant is to send me the hanging kit!
Therefore I am in my opinion I am better off using the route of the DSR's as I have the right to cancel the contract without giving a reason.

However, the whole point of my original post was to ask, upon excercising my right to cancellation and a refund, and the supplier refusing that right, can I then make a claim using Section 75 on the basis that the supplier is in breach of contract by not granting me a refund UNDER THE DSR's????
So in that respect my reference to the DSR's is totally relevant to my question!

As for your likening of this to playground squabbles, if it does appear to come across like that I am being taken completely out of context, I am just purely giving my opinion and interpretation of the guidelines in the same way as anyone else is.
I apologise, Teaboy2 if you regarded my comment as somehow implying that you were lacking knowledge what I meant by that was maybe someone with more experience/knowledge was looking in on this and could clarify. Not at all suggesting otherwise.
I hope that clarifies the matter.

The thing is Redletter i gave you your answer to your question 3 times. In fact, davyb answered your question in his first post on this thread

The item was not as discribed therefore you were entitled to claim a charge back under section 75 as a result of the sellers breach of section 13 sales of goods act. Your question was not about whether you were entitled to a refund first or not, under DSR, as that was what you brought up yourself later on in post #8 when your original question had already been answered. As such the whole DSR arguement you have with the seller is not relevant due to the fact you have a clear and undeniable claim under section 13 of the sales of goods act to instigate a charge back under section 75. A breach of the sales of goods act 1979 takes legal precendence over the DSR, rendering the DSR issue de mininis and irrelevant pointless argument in this issue you have with the seller. Reason being is you can as you probably know get a charge back and you money back without the need to send any goods back first.

So bascially as a breach of the sales of goods act takes legal precedence here and automatically entitled you to do a charge back, you had no need to even concern yourself with the DSR and what it says about refunds and returns. As since the sales of goods act 1979 is on your side it automatically grants you that right if the goods were not as discribed and the seller was refusing to collect, replace or refund in full. The part of the DSR you needed to concern yourselve with was the cancellation period and giving written notice as to your wish to cancel, thats all nothing else, not about refunds or returns under the DSR or anything else under the DSR - Especially when the seller refused to replace the missing parts. As that refusal to replace such missing part is what put him in breach of section 13 of the sales of goods act 1979 in the first place and therefore is what opened the door for you to claim under section 75 charge back.

So your claim is not "seller refused to issue you a refund upon cancellation under the DSR as the seller is entitled to take upon 30 days to issue said refund so your charge back would not be accepted by the card company. Where a charge back request for the sellers breach of section 13 (goods not as described - missing parts that were stated as included in the sellers product discription) sales of good act 1979 does entitled you to a charge back under section 75.

Do you see what where am coming from now? As you basically would not have a claim for charge back under DSR untill the 30 days that the seller has to issue a refund under the DSR has passed and you have already returned the goods.

[Guest]

Re: Section 75 yes or no?

I thought this had been answered, as far as statute is concerned they have a statutory duty to re-embers you upon cancellation, your only duty is to look after the goods and ensure they are returned intact, the statute is silent about the matter of waiting for the goods to be returned before the repayment is due, so therefore it is due on cancellation.

Section 75 is appropriate in this case as this would be a breach of a credit agreement under section 12b of the act, and the act says that the credit card company are equally liable, upon breach.

However before the bank pay out they will want to make sure that all other avenues of redress have been exhausted and experiences tells me that if you want to pursue the 75 reclaim it will take some effort on your part in pursuing the bank.

D

[teaboy2]

Re: Section 75 yes or no?

Davyb the DSR grants the Seller 30 days from date of cancellation to issue a refund. So no a charge back can not be made under breach of DSR when such breach does not occured until after 30 days from cancellation date and no refund has been forthcoming. You then have the issue of whether the buyer has returned the goods or not and whether the seller, and quite rightly can, issued a legal claim for the goods or value of them after the refund was issued on day 30 and goods still not returned.

So no refund is not due on cancellation but within 30 days after the date of cancellation.