A very expensive typographical error...

Tallulah2010

Dear MSE People,

I was so thrilled when I found this part of the site as I am in a horrible situation at the moment and would be so relieved if someone could point me in the right direction of where to get advice/find out my rights.

Basically I bought a parrot cage from an internet pet shop and the one pictured isn’t the one I received. They are classifying it as a “typographical or other inaccuracy” and want me to pay for its return to them. I just don’t see how that can be right.

This is the longer version of the story – My parrot’s cage is old and the closures have worn loose so he can escape. He’s only caged when I’m not home, but he needs to be for his own safety so I’m desperate for a replacement.

I spent a good few hours trawling the internet and found a pet supplies company with a good web site and it had listed the exact same cage as mine but close-up images showed that the design of some of the fittings had been modified, and these were the ones worn loose on mine, as I was thrilled I could get the same cage and the less well designed bits that wore loose had been modified so that wouldn’t happen again.

However, they were showing 4 images of the cage – one was the old version that I have, unmodified, and three were close-ups of modifications, so I needed to confirm which they were selling as they were showing old and new versions. I phoned them up and explained this and asked if they could tell me if I could be sure to get the new version, as they were showing both on the web site.

A very helpful person said she believed they always stock the most recent items, but I needed to contact Customer Services after the weekend. I had told her that I have the old version and my parrot can escape from it and she suggested I make that point in my communication with Customer Services.

I then filled in an on-line enquiry form explaining that 4 images are shown for the cage I want. One mages is the old version, which I have, and the 3 other images are of the modified cage, and that is the one I needed and could they tell me which they have in stock. I received this back:

“We have our stock in right from the UK supplier, as such we have the most up to date version”.

So, I ordered the cage, it arrived, and it was the old version. I rang the company immediately and the person I spoke to was the one who had sent the message saying it’s the most up to date version. He insisted that what I had been sent was the most up to date version. I spoke about the images on the web site and how this cage didn’t have those modifications and all I was told continually is that he was sorry I wasn’t happy with the cage and I could send it back. Then came the bombshell – he said I’d have to pay for its return!!

I was utterly shocked. I tried to explain that he may think he’d sent the most recent version of the cage, but it wasn’t my fault that he didn’t know what the most recent version was. I also tried to point out that there was also the issue of the cage not conforming to the images, but he didn't seem to understand what I was saying. The conversation went round in circles and I just couldn’t get a response to the fact that the images shown and that I’d asked for confirmation on weren’t available on the cage sat in my hallway.

I then put all of this in an email to them and also printed out the email and the web page with the images and sent to their head office.

They have responded saying that their Terms and Conditions clearly state that a buyer must pay return carriage and that their web site may contain typographical errors or other inaccuracies. I emailed back to say that a typographical error is not the same as showing the wrong image on a £175 cage.

It’s all the more odd as they’ve said the wrong images were shown. They’ve said:

“The bowls pictured in the 2nd picture is for a different Montana cage and we are unsure as to why they were listed with this cage".

And also:

“On request, we will collect the Products from you, but the cost of this will be charged to you and we may deduct this from the Refund. If: the Product delivered is not what you Ordered (including an unapproved Substitute Product), or does not correspond with its description”

And
“I understand that the pictures where on the site in error and this has now been rectified, but I once again must point out the agreed terms & conditions: Please note that although we try to ensure that the content of our web site is accurate, our web sites may contain typographical errors or other inaccuracies.”

I need to know if I really have to pay for the return of an item that the company is admitting was shown incorrectly on the web. It’s a costly equivalent to a typographical error for me and I am totally stuck now with how to proceed. I have a copy of the Office of Fair Trading’s “A Guide for Businesses on Distance Selling” but am yet to find anything that seems to cover my situation.

I would be so grateful if someone could point me in the right direction and thank you very much if you’ve taken the time to read this!!!

tomwakefield

Which website is this?

They can't just put anything in the terms and conditions (well, they can, but if they try and remove statutory rights they're unenforcable). If you checked with them the version they were selling was the most recent version and then that wasn't the one sold then I'd have thought DSR 3.57 would come into play

If the goods are faulty or do not comply with the contract, you will have to pay for their return whatever the circumstances.

PDF Link (bear in mind this guide is a guide for businesses therefore "you" refers to the business)

System

Have you checked whether the pictures are of a newer version or a different model as they state?

Tallulah2010

Thanks both for replying. I'd already checked with the site I normally buy my pet stuff about this cage and they said the modifications have been made but they are getting rid of old versions before selling the new one. Which is how I ended up searching for somewhere that does do the new version. Does this mean if the images were for a different cage as the seller states, then that would change things?


I wanted to post a link in my first thread to the Terms of the seller, but wasn't allowed to post a link as i'm a new member. The seller is theonlinepetstore dot co dot uk

Thank you!

tomwakefield

Hmm...that second term is interesting if that's what they sent you in its entirety

The exact term on the website is:

On request, we will collect the Products from you, but the cost of this will be charged to you and we may deduct this from the Refund. If:
* the Product delivered is not what you Ordered (including an unapproved Substitute Product), or does not correspond with its description;
* the Product delivered is not of a satisfactory quality,
* the Product arrives damaged or faulty And you have notified us within 7 working days, we may replace the item or affected parts or you may Cancel the Order and receive a full Refund. You will not be charged for the costs of returning an unapproved substitute or defective product.

Incidentally, a typographic error disclaimer wouldn't cover the fact you were told they sold the new one over the phone - although proving it may be difficult

neilmcl

Forget te Distance Selling Regulations for a moment. If you can show that the cage was not "as described" then you have a case for a full refund under the Sale of Goods Act and as such the retailer should also pay the costs for the return.

Tallulah2010

Thanks for all this. Yes, my quotes from the seller are what they sent me in their entirity - I just copied and pasted. I've looked again at their site. Could they argue that what I've received is NOT "an unapproved substitute or defective product", even though it wasn't the one shown? It seems right to me that under their statement "does not correspond with its description" I should get all refunded, but they obviously think not. Should I print out all this info from the OFT and post to them or go through a solicitor? I worry that they wouldn't refund even if they said they would. But I don't think they will anyway as they haven't up until now even though what I've presented to them seems perfectly obvious and means they are in the wrong.

Thanks you all so mcuh for this. I am so stressed and upset with the feeling of helplessness, a parrot in need of a cage, and £175 down!

unholyangel

Under DSR you have a unconditional right to cancel within 7 working days. You should inform them via a durable form (ie email, fax, letter). They must then give you a refund within 30 days. This cannot be dependant upon them receiving the goods back and must not have any deductions. You do have a duty of care to look after the item and make it available for collections but that is all (unless stated in their T&C's that you need to send it back to them).

Given the situation i dont think it conforms to contract. Its not just a different colour for instance. And if you have also enquired as to the exact specifications of the cage and made them aware that it couldnt be model x because the bird can escape and they have assured you it isnt that model, it definitely works in your favour and shows that the cage delivered was not the cage ordered. I cant remember where but i can remember reading i think on whatconsumer that if you ask specific questions about the product.....it actually then becomes part of the contract......hard to prove if it was done over the phone/in store as opposed to in writing though!

If they do not refund you in full they are in breach of the DSR's. I presume they are a UK company? I just skimmed over your post again but i'm that tired the words are blurring! lol

Just as a edited note, you cannot at any time be contracted out of your statutory rights. Regardless of what their T&C's say (T&C's that should have been provided in a durable form - again email/writing etc but websites are not durable as they can be changed AFTER the contract is made). Likewise even if its not covered by your statutory rights (although imo it is), you could always argue unfair contract terms.

As for approved substitutes.......did you tick any boxes saying you agreed to a substitute if your item wasnt available?

Personally i'd send them a LBA.

Tallulah2010

Thank you all. I have been so upset and frustrated and certainly feel less terrible since your kind replies. I will gather information and send a LBA.

Pound

unholyangel wrote: »

Under DSR you have a unconditional right to cancel within 7 working days. You should inform them via a durable form (ie email, fax, letter). They must then give you a refund within 30 days. This cannot be dependant upon them receiving the goods back and must not have any deductions. You do have a duty of care to look after the item and make it available for collections but that is all (unless stated in their T&C's that you need to send it back to them).

They can charge a fee for collection though if the return is made under the DSR rather than SOGA.

unholyangel

Pound wrote: »

They can charge a fee for collection though if the return is made under the DSR rather than SOGA.

Bearing in mind the DSR's state:
You can never
require consumers to pay the cost of returning substitute
goods. If the goods are faulty or do not comply with the
contract, you will have to pay for their return whatever the
circumstances.

And again you refers to the business, not the consumer. Like i said, you cannot contract out of your statutory rights.