Mattress Return Distance Selling Regulations

Optimist

Pinkypants wrote: »

Exceptions to the right to cancel

13.—(1) Unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation pursuant to regulation 10 in respect of contracts—

(a)for the supply of services if the supplier has complied with regulation 8(3) and performance of the contract has begun with the consumer’s agreement before the end of the cancellation period applicable under regulation 12;

(b)for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier;

(c)for the supply of goods made to the consumer’s specifications or clearly personalised orwhich by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly;

(d)for the supply of audio or video recordings or computer software if they are unsealed by the consumer;

(e)for the supply of newspapers, periodicals or magazines; or

(f)for gaming, betting or lottery services.

See above in Red the reason being it would be unhygenic to return a used mattress.

lol very vague isnt it ?

The hygene reason is a misnomer the general view taken and the one taken by the OFT and the DTI is that these exceptions are only allowed where returning the goods is a physical impossibility or where they cannot be restored in the same physical state as they were supplied however they are cared for.

However we are going to have to agree to disagree but if you are planning on selling mattresses on line I would suggest you get proper legal guidance from a soliciter who specialises in consumer law or at some point you will come into contact with a customer like the OP who is quite willing to go to court to assert their rights

derrick

Optimist wrote: »

lol very vague isnt it ?

The hygene reason is a misnomer the general view taken and the one taken by the OFT and the DTI is that these exceptions are only allowed where returning the goods is a physical impossibility or where they cannot be restored in the same physical state as they were supplied however they are cared for.

However we are going to have to agree to disagree but if you are planning on selling mattresses on line I would suggest you get proper legal guidance from a soliciter who specialises in consumer law or at some point you will come into contact with a customer like the OP who is quite willing to go to court to assert their rights

My thoughts are the same as yours, and appear to be backed up from where Pinkypants seems to be quoting from, and from where they have not continued;-

I sell items that may raise health and safety concerns if returned unsealed. How are such products treated under the DSRs?
3.41 The first question to consider is whether such items fall under the exceptions listed at paragraph 3.38, for example goods that by reason of their nature cannot be returned. The DSRs do not define this category any further but we consider this exception to apply only where returning the goods is a physical impossibility or where they cannot be restored in the same physical state as they were supplied.
This exception may apply, for example, to items such as latex or nylon clothing which could become distorted once worn.

3.42 We are conscious of concerns about reselling items which may raise concerns about hygiene. However, the DSRs do not link cancellation rights with a supplier’s ability to resell items as new.

Red highlighting by me suggests we are correct!


Further from my link;-

From page 28; -
Can I insist that consumers who cancel an order within the cancellation period return the goods as new or in their original packaging?
3.58 No. Consumers are under a duty to take reasonable care of the goods while in their possession as discussed in paragraph 3.44. The DSRs allow consumers to examine goods they have ordered as they would in a shop. If that requires opening the packaging and trying out the goods then they have not breached their duty to take reasonable care of the goods. In these circumstances you cannot insist that consumers return the goods as new or in their original packaging. You may ask consumers to return goods with the original packaging, but you cannot insist on this. In the case of goods such as earrings that have hygiene seals, you may require consumers to exercise reasonable care by not removing the seals when examining them.
How can I resell the goods as new if they have been opened and tested by the customer?
3.59 The DSRs do not provide any general exception to the right to cancel on this point. Unless one of the specific exceptions referred to above at paragraph 3.38 applies, consumers can exercise their right to cancel a contract and return the goods to you. The DSRs do not link cancellation rights with a supplier’s ability to resell items as new.


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Pinkypants

I do argee that the DSR regarding mattress is very vague, which is why we took advice upon the matter. I was merely posting my personal findings.

Having worked in retail for over 15 years now, mainly for smaller companies, I have always tried to keep up with keeping regulations. Be it Sales of goods act, guarantees or even distance selling.

It would be nice if the OFT would make the rule black and white. But then the letter of the law is always subject to interpretation.

allstar4eva

Pinkypants wrote: »

I do argee that the DSR regarding mattress is very vague, which is why we took advice upon the matter. I was merely posting my personal findings.

Having worked in retail for over 15 years now, mainly for smaller companies, I have always tried to keep up with keeping regulations. Be it Sales of goods act, guarantees or even distance selling.

It would be nice if the OFT would make the rule black and white. But then the letter of the law is always subject to interpretation.

The most recent posts have been very interesting. Bearing in mind that some consider the law to be vague and also that it is prohibitively expensive for a consumer to return a mattress via courier, surely a retailer has a responsibility to make it absolutely crystal clear what their interpretation of consumer rights are in relation to returning a mattress in their website Ts and Cs?

I see that the !!!!!! Beds has added the following to their Terms & Conditions:

"Any buyer who refuses to abide by our terms and conditions will forfiet the rights to the benefits provided by our terms and conditions, and transactions will therefore be covered by Distance Selling Regulations. This will mean that we will chage for return postage in these cases."

This in my view is still very vague as the Ts and Cs are not clarified and further they give no idea of what the costs of returning a mattress for example would be or the likely method of collection.

Further why not state that customers may need to sleep on a mattress for a number of nights in order to help find a suitable alternative? this is an important omission.

I am not being argumentative here - before certain people jump down my throat - I feel that I am making a valid point. Most other online retailers are very clear in their Ts and Cs about what their returns policy is. The fact that this information is very vague means that consumers may be misled - especially if they are users of these forums where the owner gives the impression that buying beds online is very easy and convenient and even if there are problems it will cost the retailer and not the customer provided the retailer has a "good" returns policy. I must admit that I am wondering if the Ts and Cs are deliberately vague otherwise why not make them clear as per other online bed retailers?

fthl

I don't think the amended t's and c;s are vague at all - in fact they correct the previous ambiguity. It is clear that if you want to return under the dsr's then you pay for it. The caveat to this is that they are clearly not professionally written t's and c's and have a substantial number of issues. It is up to the company to correct this if they wish. I would If I were them, it saves problems later.

I also think that the fact that the OFT and many posters here who seem to be fairly experienced and with practical experience of these matters take the view that mattresses are not excluded is very telling. If a trader decided to take the opposing view, without written advice to back up the position, I think they'd be very brave.

Twopints

here's an extract from an on-line order acknowledgement e-mail from John Lewis received on 14th Jan (no mattresses were ordered ):

Your right to return goods does not apply to products which fall into the following categories, unless they are faulty:


mattresses, swimwear, lingerie, children's car seats and pushchairs that have been opened and used;
CD, DVD, tapes or other recording media, software or videos if their seal is broken;
perishable goods;
goods made to your specification;
pierced jewellery;
wines unless they are returned in full cases

I wonder what basis they have for including mattresses in this?

fthl

swimwear, lingerie, children's car seats and pushchairs

and these... unless... you don't think that they are trying it on, do you? Next thing you know people will be putting unenforceable terms in contracts for kicks...

neilmcl

Twopints wrote: »

here's an extract from an on-line order acknowledgement e-mail from John Lewis received on 14th Jan (no mattresses were ordered ):




I wonder what basis they have for including mattresses in this?

That's just their own T&Cs and have nothing to do with you own statutory rights.

Tim_Deegan

Twopints wrote: »

here's an extract from an on-line order acknowledgement e-mail from John Lewis received on 14th Jan (no mattresses were ordered ):




I wonder what basis they have for including mattresses in this?

The same as swimwear, lingerie, and pierced jewellry......body fluids, think about it.

And they aren't just trying it on, they have legal departments who know retail law inside and out. And I should think that one retailer alone has many test cases to refer to. In fact a judge told me that he knows of a number of similar cases.

fthl

None of which are covered by the dsrs. If you have an authority - cite it. Name the judge. Name the cases. Without these it is simply rumour. And poorly attributable. The ability to resell an item has nothing to do with whether it can be returned under the dsrs. I'll remind you that the best legal minds in the retail world argued that s75 of the consumer credit act didn't apply abroad, and that once upon a time they thought that there needed to be privity of contract before damages could be recovered for faulty goods.

As for 'And they aren't just trying it on, they have legal departments who know retail law inside and out.' please don't be that naive. Of course they try it on, every single day, and their lawyers know this. just look at these boards if you are uncertain. That is why there won't be any test cases. They don't make the court and they sure as hell don't make the high court and get reported.

The JL t's and c's also include:

"Entire agreement

These Conditions govern our relationship with you. Any changes to these Conditions must be in writing and signed by both parties. In this way, we can avoid any problems surrounding what John Lewis and you are expected to do. You confirm that, in agreeing to accept the Conditions, you have not relied on any representation save insofar as the same has expressly been made a term of these Conditions and you agree that you shall have no remedy in respect of any representation. Your Statutory Rights are not affected by these terms and conditions. Nothing in this Clause shall limit or exclude our liability in respect of any fraudulent or negligent misrepresentation whether or not such has become a term of the Conditions."

From your extensive legal experience, and based on the comments your judge-friend has made, you'll know that this clause is very ropey, right? And has little contractual effect if there is a 'battle of the forms' dispute. Even if there isn't, a court will still happily look at any other representations if they help the interpretation of a part of the contract, even if they are reluctant to allow new terms to be adduced.