Do I have to refund?

toffe

4743hudsonj wrote: »

Again.... i am not aware of any 'right' of sellers in law that Amazon is denying, please point me to it? Ive asked this 3 times now, each time you havnt backed up your claim that amazon have unfair contractual terms.

You cant deny something that doesnt exist.

Fair enough if you can show me the law that states sellers have the right to not provide refunds.

As before im not actually discussing ether the OP has to refund or not, just your seemingly unjustified accusation the amazon is breaking the law. please clarify.

what we are talking about is the fact that the distance selling regulations do not apply to private sellers and therefore there is no legal obligation on the seller to refund on a private sale so long as he supplies exactly what was listed and the goods are as described and fit for purpose.

Here is confirmtion from ebay that the distance selling regs don't apply to private sellers: http://reviews.ebay.co.uk/Distance-Selling-Regulations-And-eBay_W0QQugidZ10000000000140381

But for more formal confirmation that a private seller is not required to refund under distance selling regualtions here is a link to the office of fair trading's publication on the subject which states:


"2.18

Sales by private individuals not acting for business purposes are not
covered by the DSRs."

You'll find this on page 8 of the following link: http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

4743hudsonj wrote: »

Fair enough if you can show me the law that states sellers have the right to not provide refunds..

It would be the fact that the distance selling regs are the law which make business sellers liable to accept returns and the fact that under the terms of said regulations (which are law) private sellers do not have to accept returns which means rather than there being a law which states private sellers do not have to refund rather their is an exemption within the law relating to refunds on distance sales which makes private individuals "exempt" from being legally bound to offer refunds.

Yet the amazon agreement seems to attempt to bind people who are legally exempt from refunding to offer refunds.

4743hudsonj

toffe wrote: »

what we are talking about is the fact that the distance selling regulations do not apply to private sellers and therefore there is no legal obligation on the seller to refund on a private sale so long as he supplies exactly what was listed and the goods are as described and fit for purpose.

Here is confirmtion from ebay that the distance selling regs don't apply to private sellers: http://reviews.ebay.co.uk/Distance-Selling-Regulations-And-eBay_W0QQugidZ10000000000140381

But for more formal confirmation that a private seller is not required to refund under distance selling regualtions here is a link to the office of fair trading's publication on the subject which states:


"2.18

Sales by private individuals not acting for business purposes are not
covered by the DSRs."

You'll find this on page 8 of the following link: http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

It would be the fact that the distance selling regs are the law which make business sellers liable to accept returns and the fact that under the terms of said regulations (which are law) private sellers do not have to accept returns which means rather than there being a law which states private sellers do not have to refund rather their is an exemption within the law relating to refunds on distance sales which makes private individuals "exempt" from being legally bound to offer refunds.

Yet the amazon agreement seems to attempt to bind people who are legally exempt from refunding to offer refunds.

That doesnt prove anything! i am well aware SOGA and DSR do not apply to private CON-CON sales. I asked you what Law you state amazon are breaking when you refer to the unfair contract terms act.

If you cant answer (which i highly doubt you can) dont just point to any old law thats either irrelevant or doesnt prove your point.

If im honest, i think your talking out your backside when you refer to amazon breaking laws with their terms and how they deny sellers rights. So one last time.... WHAT RIGHTS are they breaking?

DVardysShadow

custardy wrote: »

didnt you read the link i provided?
it covers both buyer and seller terms

No I didn't. It is on my 'to do' list. Does it provide enlightenment as to whether Amazon is Seller's Agent or Back to Back Buyer and Seller?

DVardysShadow

4743hudsonj wrote: »

That doesnt prove anything! i am well aware SOGA and DSR do not apply to private CON-CON sales. I asked you what Law you state amazon are breaking when you refer to the unfair contract terms act.

If you cant answer (which i highly doubt you can) dont just point to any old law thats either irrelevant or doesnt prove your point.

If im honest, i think your talking out your backside when you refer to amazon breaking laws with their terms and how they deny sellers rights. So one last time.... WHAT RIGHTS are they breaking?

No one is saying that Amazon is breaking a law. So this talking out of backsides stuff is irrelevant. Amazon are applying the seller side of DSR to private sellers who are exempt.

4743hudsonj

DVardysShadow wrote: »

No one is saying that Amazon is breaking a law. So this talking out of backsides stuff is irrelevant. Amazon are applying the seller side of DSR to private sellers who are exempt.

You may not be but toffe certainly believes so, (s)he just refuses to back up their point. I just wish to know why they think what they are doing is illegal.

toffe wrote: »

PROBLEM: Contractual terms which remove a person's legal rights or protection are prohibited under uk unfair contract legislation. This is why i believe Both Amazon and paypal's user sgreements are not legally binding.

toffe wrote: »

therefore private sellers legal rights are being removed.

I belive that this is a contractual prohibition.

toffe wrote: »

I think thats flawed as it removes the legal right of the seller. Such contractual terms are not allowed under our unfair contract terms legislation so the op should be able to ignore this contract term as it should be unenforceable.

DVardysShadow

4743hudsonj wrote: »

You may not be but toffe certainly believes so, (s)he just refuses to back up their point. I just wish to know why they think what they are doing is illegal.

The strange thing is that what they are doing is not necessarily illegal. It is just that it may not be legally enforceable.


What toffe means by "Contractual terms which remove a person's legal rights or protection are prohibited" is that such terms cannot form part of an enforceable agreement.

If I get you to sign up to a contract which takes away your legal rights, I may not have broken any law. The worst which would happen for me is that I could not enforce the agreement against you.

4743hudsonj

DVardysShadow wrote: »

The strange thing is that what they are doing is not necessarily illegal. It is just that it may not be legally enforceable.


What toffe means by "Contractual terms which remove a person's legal rights or protection are prohibited" is that such terms cannot form part of an enforceable agreement.

If I get you to sign up to a contract which takes away your legal rights, I may not have broken any law. The worst which would happen for me is that I could not enforce the agreement against you.

Yes but the last quote shows him/her refereeing to legislation that they claim amazon is breaking, im just interested why they think that as i dont see there any thing to be broken ie the fact that normally sellers have no obligations ISNT a right written in law its merely a product of a lack of law..... so if theres no law, what are they breaking?

DVardysShadow

4743hudsonj wrote: »

Yes but the last quote shows him/her refereeing to legislation that they claim amazon is breaking, im just interested why they think that as i dont see there any thing to be broken ie the fact that normally sellers have no obligations ISNT a right written in law its merely a product of a lack of law..... so if theres no law, what are they breaking?

If the law says 'unfair terms shall be disregarded', then:

toffe wrote: »

.... I think thats flawed as it removes the legal right of the seller. Such contractual terms are not allowed under our unfair contract terms legislation so the op should be able to ignore this contract term as it should be unenforceable.

what toffe says is correct, but no one has broken the law, no one can be charged with anything.

There is more to law than just the bits about banging people up - in this sort of situation, it is not necessary to bang anyone up for including unfair terms in a contract, it is enough to say that the unfair terms cannot be enforced.

toffe

4743hudsonj wrote: »

Yes but the last quote shows him/her refereeing to legislation that they claim amazon is breaking,?

Wrong! i never said Amazon are breaking the law merely that by not observing the exceptions to the law relating to a private sellers right not to refund they may be (and i believe they are) including a prohibited contractual term within the user agreement under the unfair terms in consumer contract regulations 1999 and if thats the case Amazon would not be able to enforce this term as being legally binding in a court of law.

4743hudsonj wrote: »

im just interested why they think that as i dont see there any thing to be broken ie the fact that normally sellers have no obligations ISNT a right written in law its merely a product of a lack of law..... so if theres no law, what are they breaking?

It's not a case of breaking any law its a case of writing into a contract a term which is prohibited under unfair contract legislation. To do so is not illegal, there is no penalty for it except that by doing so you run the risk of rendering the contract by which you wish to bind another party as totaly unenforceable and therefore not legally binding which is what i said.

toffe

phlogeston wrote: »

Agree totally with 4743hudsonj, toffe has been banging about 'laws' which certainly did not exist when I did my law degree.

The law allows individuals to contract on any terms they wish (businesses are bound by an additional raft of legislation). By selling on amazon, the OP has agreed that the amazon rules form part of the terms of the contract between himself and the buyer.

If a term of the contract is that refunds are allowed up to 7 days after delivery then those terms are binding.

I don't know who you did your law degree with but if i were you i'd consider asking for a refund.

The two conflicting pieces of legislation i refer to are the distance selling (protection from unfair trading) regulations act 2000 and the unfair terms in consumer contracts act 1999 and i assure you both of these acts of law exist.

What is the conflict?: well, the op is a private seller and therefore exempt from any obligation under the distance selling regualtions 2000 to offer refunds.

However it would appear that the Amazon contract removes this right not to refund (under the exemptions of the distance selling regs) for private sellers, effectively removing their right to consider all sales final, which is their legal right under the exemptions from the distance selling regs.

This is a contractual prohibition under the terms of the unfair terms in consumer contracts act 1999 which state the following to be an example of an unfair contractual term:

"(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract."

The bit in bold is particularly of interest here as that appears to be exactly what Amazon require private sellers to do, they take the case to arbitration via the amazon system which does not appear to observe the the legal provisions (under the exemptions to the distance selling regs)which allow the private seller to consider all sales final.

That is (possiblybut i think definately) a contractual prohibition under the unfair terms in consumer contracts act 1999.


you can read the full legislation here: http://www.opsi.gov.uk/si/si1999/19992083.htm