Do I have to refund?

4743hudsonj

toffe wrote: »

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.




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.

OK illegal was perhaps a poor choice of words but your certainly suggesting that by stating legislation that apparently is contradicted by Amazon, you then go on to say how this comes under the unfair contract terms blah blah blah, thats what i meant by saying you keep saying its illegal, your certainly not just saying its unenforceable, your either suggesting its illegal or have also just worded your argument poorly in this regard.

I refer to my key point below

toffe wrote: »

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.

WHAT RIGHT? an exemption, is not a right on its own, its the opposite, its an exclusion from a right, in the case of DSR its excluding private sales from the rights of CONSUMERS. IT DOES NOT give rights to sellers. Therefore, sellers have no 'right' to consider all sales final, but equally, buyers are excluded from having a statutory right to one.

So that brings me to my point on your comments, how can you possibly say Amazons terms, in your own words, contractually prohibit, a right which doesnt exist, as i said, there is no written law stating sellers have a right to consider sales final (if you can show me it, please do) so Amazon cannot possibly prohibit something non-existing. So all your references to the unfair contract terms act etc etc is all irrelevant and off the mark IMO as there is no legal basis for what you have said.

Please dont feel the need to continue repeating your point, ive heard it, i want your proof, i want that bit of law, stating that sellers have the right to consider sales final, and this is not the exemption mentioned in DSR. I think its a very simple question your giving very complicated answers to that dont at all answer the question.

toffe

4743hudsonj wrote: »

OK illegal was perhaps a poor choice of words but your certainly suggesting that by stating legislation that apparently is contradicted by Amazon, you then go on to say how this comes under the unfair contract terms blah blah blah, thats what i meant by saying you keep saying its illegal, your certainly not just saying its unenforceable, your either suggesting its illegal or have also just worded your argument poorly in this regard.

I refer to my key point below

WHAT RIGHT? an exemption, is not a right on its own, its the opposite, its an exclusion from a right, in the case of DSR its excluding private sales from the rights of CONSUMERS. IT DOES NOT give rights to sellers. Therefore, sellers have no 'right' to consider all sales final, but equally, buyers are excluded from having a statutory right to one.

So that brings me to my point on your comments, how can you possibly say Amazons terms, in your own words, contractually prohibit, a right which doesnt exist, as i said, there is no written law stating sellers have a right to consider sales final (if you can show me it, please do) so Amazon cannot possibly prohibit something non-existing. So all your references to the unfair contract terms act etc etc is all irrelevant and off the mark IMO as there is no legal basis for what you have said.

Please dont feel the need to continue repeating your point, ive heard it, i want your proof, i want that bit of law, stating that sellers have the right to consider sales final, and this is not the exemption mentioned in DSR. I think its a very simple question your giving very complicated answers to that dont at all answer the question.

If you are exempt from a piece of legislation you do not have to observe it, therefore in the case of the DRS the seller does not have to offer refunds, that is is his legal right because it can not be argued that by doing so he is acting illegally. Anything that we do that complies with and does not contradict any specific legislation is our legal right.

i can walk backwards down the street singing i'm a little tea pot if i like, not because there is a specific piece of legislation called "the walking backwards down the street singing i'm a little teapot act" specifically stating that i have this right but because it does not contravine any other law.

but lets say my local council got complaints about this strange man walking backwards down the street singing i'm a little tea pot they could not do anything to enforce any action to prevent me doing this as it breaks no law and it is, whether there is any legislation specific to it or not, my legal right to do so as it does not contravine any other laws.

therefore, should anyone attempt to interfere me with me going about my business, albeit in a very strange way, it would be they and not i who were breaking the law by harrassing/assualting me should they attempt to interfere with me going about what is my legal right.


Much in the same vain, what the unfair contractual terms act does is prevents companies from interfearing with consumers legal rights,as the quote from the unfair terms in conumer contracts act states, requiring a consumer to go directly to arbitration which does not observe the legal position of the consumer is usually an unfair contractual term.

so should the private seller argue, "i should not be bound to this term because it does not observe my legal position under UK legislation relating to distance selling" it is likely that a court would deem the position of the law to take priority over the private contract term between amazon and the seller because a contract term which appears to not fully observe the legal provisions relating to the conumer in relation to that term is not binding under unfair contract legislation.

soolin

toffe wrote: »

If

so should the private seller argue, "i should not be bound to this term because it does not observe my legal position under UK legislation relating to distance selling" it is likely that a court would deem the position of the law to take priority over the private contract term between amazon and the seller because a contract term which appears to not fully observe the legal provisions relating to the conumer in relation to that term is not binding under unfair contract legislation.

Afte you then with the million pound court case against Amazon.

Surely this is now so off topic as to be irrelevant. The question centred around an item sold on Amazon by a person who signed up and said he agreed to abide by their terms and conditions..so the answer to 'will I have to refund' is still yes.

DVardysShadow

soolin wrote: »

Afte you then with the million pound court case against Amazon.

Surely this is now so off topic as to be irrelevant. The question centred around an item sold on Amazon by a person who signed up and said he agreed to abide by their terms and conditions..so the answer to 'will I have to refund' is still yes.

Eh??? You actually quote the bit of toffe's argument which makes the case that the part of the T&C's which requires seller to refund may actually be unenforceable.

toffe

soolin wrote: »

Afte you then with the million pound court case against Amazon.

Surely this is now so off topic as to be irrelevant. The question centred around an item sold on Amazon by a person who signed up and said he agreed to abide by their terms and conditions..so the answer to 'will I have to refund' is still yes.

Actually it would cost nothing at all for the op to raise this in court as there would be no need to do so unless Amazon actually took them to court for refusing to refund, something i think it is unlikely Amazon would ever do.

It costs nothing to enter a defence.

So, after you with misinforming forum readers that things which actually cost nothing will cost them a million pound. Misinformation such as this only serves to scare people into submitting to unfair treatmemt.

cyberbob

There's too many Keyboard Solicitors on this site who talk about what's legal and not but normally are a little clueless and never follow up their claims with actual legal action. We can all talk a good fight but as has been said all the way through this thread if the buyer opens an A-Z the OP will have to refund its as simple as that.

toffe

soolin wrote: »

Surely this is now so off topic as to be irrelevant. The question centred around an item sold on Amazon by a person who signed up and said he agreed to abide by their terms and conditions..so the answer to 'will I have to refund' is still yes.

Well it is not off topic really no, granted it has gone into far more detailed discussion than needs be about the legislation sourounding the matter but that is because one or two people wanted to examine the ins and outs of the matter.

To scale it all back i refer you to my origional post which is really simple and by which i stand firmly and i think it sums up the options the op does have perfectly:

toffe wrote: »

As i'm sure you will have gathered from other replies, if the matter goes to an amazon claim Amazon will refund the buyer, they will then come after you for the money.

This contradicts your legal selling status obligations, in the uk private sellers do not have to offer refunds, but you have a private agreement with Amazon to abide by their decisions even if those decisions contradict your legal rights.

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.

It would also be very difficult for amazon to pursue you through the courts (the only realistic chance they have of enforcing payment) based on a contractual term which removes/ contradicts your legal rights.

So, If you don't care about using Amazon again in the future you could cancel your payment arrangement with them so that they can not debit your bank account and refuse to pay, it's unlikely you'll ever have to pay but you'll probably get debt collection letters and phone calls at some point.

You'll also never be able to use Amazon again.

So it's your decision, what would you rather have, your Amazon account or the money? You can't have both so it's a decision you'll have to make.

If you decide not to refund the buyer will just have to sell the phone on, he may even make a profit on a good day so it's not like he'll be left out of pocket..

phlogeston

toffe wrote: »

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

And your legal qualifications would be...

Without getting into a slanging match, I would guess none, as you don't seem able to interpret these Acts.

Yes, I have read and studied both Acts and neither apply in this case.

The contract is between the OP and the purchaser.

The OP has included in the contract the term that refunds are available. He does this when he offers any item for sale on Amazon. He cannot then try and claim that his own terms are unfair to himself!

There is no right in contract law to say all sales are final, the seller is still bound to fulfil any terms of the contract.

toffe

cyberbob wrote: »

There's too many Keyboard Solicitors on this site who talk about what's legal and not but normally are a little clueless and never follow up their claims with actual legal action. We can all talk a good fight but as has been said all the way through this thread if the buyer opens an A-Z the OP will have to refund its as simple as that.

And then there are those who offer no information of any use nor are able to express any intellectual points of view but still see fit to critique others opinions, even where backed by eviedence which would atleast appear to offer some support for their point of view.

I understand the law surrounding this matter, i'm not a legal expert but i understand the law. There is a difference between having a good working knowledge of the law and how it applies to you and your business and being a solicitor. Can you point me to a post where i claim or imply otherwise?

cyberbob wrote: »

but normally are a little clueless and never follow up their claims with actual legal action.

You show how clueless you really are on this whole subject with this comment, there is nothing to "follow up" there is no "legal action" to bring against Amazon, it is a cse that it would be unlikely that Amazon would or could bring legal action against the op for not refunding.

All the op need do is sit back and relax, no one, certainly not me anyway, is advising the op to mount a legal action.

soolin

toffe wrote: »

Actually it would cost nothing at all for the op to raise this in court as there would be no need to do so unless Amazon actually took them to court for refusing to refund, something i think it is unlikely Amazon would ever do.

.

I think you misunderstand, Amazon don't ask before they take the refund, they do not ask the seller to refund, they just pull the funds and leave the seller to argue it is unfair.

As I mentioned earlier the requirement to log a valid credit card with Amazon is making it easier for them to grab payments in some cases. In most cases it seems that sellers have been unable to remove a credit card from Amazon while their selling account is still open, so ti is a Catch 22 situation, if a buyer tells Amazon they want a refund and Amazon are quick about it (which I admit is not always the case) then the buyer is stuck with a valid credit card which can be charged and no way of closing their account.

I believe it is always best to know what can happen, reams and reams of blurb about how unfair it is might reassure the OP but is hardly helpful if Amazon do decide to play nasty. We all know Amazon is glitchy, so whilst we know what should happen I fully admit that sometimes what actually happens is entirely different. However I think telling the OP categorically that there is no chance at all he will have to refund is unrealistic and unhelpful

However I am not a lawyer ( I only have an old fasioned A level in law) and do not pretend to be one but I do use Amazon, I read their boards and I read the various changes in the terms and conditions.