Have I prejudiced my statutory rights?

usupnorth

I recently ordered goods from an online retailer in error, ie I ordered the wrong item. The order is protected under the Distance Selling Regulations (DSRs), the extent of which I was initially unaware.

[Apologies for the long case history - this is a greatly reduced version, honestly!]

I contacted the retailer the same day the item was delivered (and in any case within the 7 days required by the DSRs) to say I wished to return the item, stating that I'd ordered the wrong thing. I was referred to their terms and conditions. Having looked into it, I now understand those Ts and Cs to clearly be contrary to my full rights under the DSRs (the full reasons for which I need not go into here). Their Ts and Cs 'allowed' me to return the item for a refund, but minus the initial outward postage cost and minus a 'restocking fee'. Both these deductions are contrary to the DSRs.

[Some may be surprised that the original delivery cost IS refundable when you've ordered in error, but it does appear to be the case. Check the DTI/OFT guidance document 'A Guide For Businesses on Distance Selling' and the DSRs themselves - sorry I can't post links! ]

In good faith, trusting that their Ts and Cs did not contradict statutory rights, I initially agreed to return the item for a refund minus the 'restocking fee' (though no mention was made of delivery cost refund). However, I soon discovered my full rights and told them so, long before any refund/part refund was made.

They are claiming that in agreeing to return the item for the restocking fee, I waived any other rights I may have had (though they have not acknowledged that their Ts and Cs fall short of the DSRs) even though I was just following their guidance in good faith.

So, legally ...and be honest if you're not sure please... did I forfeit my full rights in mistakenly agreeing to their less favourable Ts and Cs, before and after delivery, or do the statutory rights remain intact here?

It could perhaps be seen that, after delivery, they made me an offer to resolve the problem, to which I agreed - forfeiting any other rights. I don't think that's how a judge would see it, but what's your view please?

Equaliser123

You cannot contract out of statutory rights.

How much is in dispute here?

PHYTHIAN

You have ordered something in error yet you expect the retailer to foot the bill for your mistake......don't you think that is a wee bit unfair??

Also ( although not certain) I don't think the DSR's cover ' I made a mistake' POST delivery.

neilmcl

PHYTHIAN wrote: »

You have ordered something in error yet you expect the retailer to foot the bill for your mistake......don't you think that is a wee bit unfair??

Also ( although not certain) I don't think the DSR's cover ' I made a mistake' POST delivery.

Then you'd be totally wrong.

derrick

PHYTHIAN wrote: »

You have ordered something in error yet you expect the retailer to foot the bill for your mistake......don't you think that is a wee bit unfair??

Also ( although not certain) I don't think the DSR's cover ' I made a mistake' POST delivery.

Maybe you should read them first before making wrong assumptions!

[FONT=&quot]OFTs BUSINESS GUIDE TO DSR [/FONT]

From page 17; -
"What cancellation rights do consumers have?
3.22 The stage at which you provide your consumers with the required written information (see paragraph 3.10) will affect when the cancellation period ends.

3.23 Where the DSRs give consumers the right to cancel an order, this right is unconditional and begins from the moment the contract is concluded. Unlike when buying from a shop, the first time that a consumer will typically have an opportunity to examine goods purchased by distance means is when they receive them. The DSRs give consumers who buy by distance means more rights than consumers who shop in person. When a distance consumer cancels a contract to which the cancellation provisions apply they are entitled to a refund of any money they have paid in relation to the contract even if the goods are not defective in any way. Please also see paragraph 3.46 for further information."

From page 25
" What specifically do I have to refund to the consumer if they cancel? 3.48 The DSRs require you to refund any money paid by or on behalf of the consumer in relation to the contract to the person who made the payment. This means the full price of the goods, or deposit or pre- payment made including the cost of delivery. The essence of, distance selling is that consumers buy from home and receive goods at home. In these circumstances, almost every case of home shopping will involve delivery of the goods ordered and so delivery forms an essential part of the contract.

From page 27; -
"Who pays for returning the goods if the consumer cancels an order?
3.55 If you want the consumer to return the goods and to pay for that return, you must make it clear in the contract and as part of the required written information – see paragraph 3.10. If the consumer then fails to return the goods, or sends them at your expense, you can charge them the direct cost to you of the return, even if you have already refunded the consumer’s money. You are not allowed to make any further charges, such as a restocking charge or an administration charge."



The OP is entitled the out going postage refund, (plus return P&P if not disclosed otherwise prior to delivery), and the company cannot under any circumstances charge a restocking fee!




.

PHYTHIAN

I said I was uncertain....don't ask for opinions if you don't like the answers.

Just had a look at the DSRs and I admit to being MISTAKEN!!!!! in law...however I stand by my OPINION that YOU ordered it incorrectly and should not be able to just walk away scotfree.
I seem to remember something about the retailers own T&Cs and how these can brought into the settlement if you have been given them in writing but I really can't be bothered looking for the specifics.

Hope you get all your money back so you can keep ordering things in the knowledge someone else is going to cover the delivery costs etc if you change your mind....it's no wonder retailers are going out of business every day.

garth549

thats a bit unfair, its easy to accidently order the wrong item (especially if a web site is poorly designed/navigated)

Any business has to be aware of its legal obligations and factor this into their business model. They have to accept they are going to get a level of returns & fraud etc its part of life.

derrick

PHYTHIAN wrote: »

I said I was uncertain....don't ask for opinions if you don't like the answers.

Just had a look at the DSRs and I admit to being MISTAKEN!!!!! in law...however I stand by my OPINION that YOU ordered it incorrectly and should not be able to just walk away scotfree.
I seem to remember something about the retailers own T&Cs and how these can brought into the settlement if you have been given them in writing but I really can't be bothered looking for the specifics.

Hope you get all your money back so you can keep ordering things in the knowledge someone else is going to cover the delivery costs etc if you change your mind....it's no wonder retailers are going out of business every day.

These online retailers choose to operate away from high streets, thus incurring less costs/overheads etc, they know, (or should), the law/regs before they set up and if they don't like them they should not set up!

It is clearly stated in the regulations that "all costs including original postage to be refunded, and no restocking fees to be applied", if the conditions of the DSR are fulfilled.


.

unholyangel

PHYTHIAN wrote: »

I seem to remember something about the retailers own T&Cs and how these can brought into the settlement if you have been given them in writing but I really can't be bothered looking for the specifics.

Hope you get all your money back so you can keep ordering things in the knowledge someone else is going to cover the delivery costs etc if you change your mind....it's no wonder retailers are going out of business every day.

Just because its in the T&C's doesnt mean it would be upheld in court. Furthermore, you cannot contract out of statutory rights......which is what the DSRs are. So even if the retailer has restocking fee's etc.....DSR's overrule this.

It is consumer protection. Not business protection. Maybe not always fair 100% on the retailers but it helps customers deal with companies who try and take the mickey. Even with the DSR's in place some still try it on!

Equaliser123

PHYTHIAN wrote: »

I said I was uncertain....don't ask for opinions if you don't like the answers.

Just had a look at the DSRs and I admit to being MISTAKEN!!!!! in law...however I stand by my OPINION that YOU ordered it incorrectly and should not be able to just walk away scotfree.
.

Being honest, nobody gives a stuff what your opinion is.

PHYTHIAN

usupnorth wrote: »

I recently ordered goods from an online retailer in error, ie I ordered the wrong item.

Ok...all points re poor website design and not having overheads are taken fully on board. However the OP is not saying they ordered it wrong because they didn't know what they were ordering simply that they ordered the wrong thing in the place.

The DSRs show that no 'restocking fee' should be made by the retailer and thus I would think that an agreement to pay one is null and void. However I stand by my initial opinion that this is not the retailers fault and simply caused by the OPs negligence who is now using the DSRs to avoid the costs the retailer has had to meet.

Sorry if I seemed a tad harsh but having been a retailer whose business went to the wall because of people avoiding payments, it is a subject which often riles me.