Mattress Return Distance Selling Regulations

Tim_Deegan

fthl wrote: »

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.

I realise that you seem to think that you know all there is to know about retail law. However it is obvious that you don't. In fact DSR's them self aren't actually specific, which allows for different views of what they actually mean. And solicitors will argue that they mean different things. So at the end of the day it is all down to which lawyer puts his case over best in court.

DSR's are there to protect the consumer, but not to allow them to take advantage.

No court in the land is going to say that a retailer should accept a pair of knickers back once they have been worn without the hygiene seal, and this is because of body fluids. Mattresses can also be contaminated with body fluids just from someone sleeping on them. There are many other examples of items that are exempt. So unless you are a solicitor, and have actually been involved in a case regarding a mattress being returned under DSR's, then you can't really say for sure one way or the other.

Are you saying that all distance sellers try it on with their t&c's? Because I think they have a lot more legal knowledge combined than you do.

I'm not a solicitor, and I don't get excited about previous court cases. So I'm not going to waste my time searching for you because you have a different opinion. If you think you know better on this subject, then you are obviously interested in law, so you come up with the cases.

Your first sentence of your post "None of which are covered by the dsrs" is complete rubbish, because those very same items are used in examples of what is exempt under DSR's.

Optimist

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 ):

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?

Interestingly this isnt mentioned on the John Lewis website as per below

Contract cancellation under the Distance Selling Regulations

Please note that you are entitled to cancel this contract if you so wish provided that you exercise your right and notify us no longer than 7 working days after the day on which you receive the Products. If you wish to exercise your right to cancel this contract after your order has already been despatched, we will refund the original purchase price and delivery charge, provided that you have notified us in writing no longer than 7 working days after the day on which you receive the Products, and that you have taken reasonable care of the Products and not used them. Please follow the procedure set out in our Returns procedure. Please note that where large Products are returned as unwanted, we reserve the right to make a charge of £50 to cover the collection cost.
Please note that your right to return Products does NOT apply to Products which fall into the following categories unless they are faulty:

• Goods made to your specification
• Perishable goods (for example flowers and food)
• Unsealed CDs, DVDs, tapes or other recording media, software or videos

Optimist

Tim_Deegan wrote: »

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.

Try as I might I am unable to find any cases that have been taken through a higher court that might give precedence. If your judge knows of one for curiosity's sake I would be interested to know.

Tim_Deegan

Optimist wrote: »

Try as I might I am unable to find any cases that have been taken through a higher court that might give precedence. If your judge knows of one for curiosity's sake I would be interested to know.

As I said I don't have the time to start searching to find out what I already know.

Both Pinkypants and myself are both in the bed trade, and have both taken advice on this matter, and have both been given the same advice.

By the way someone said earlier that DSR's weren't exempt because they don't take into account the retailers ability to resell the item as new. Well the exemption is nothing to do with being able to resell the item as new, it is to do with contamination with body fluids, just the same as underwear.

Optimist

Tim_Deegan wrote: »

As I said I don't have the time to start searching to find out what I already know.

Both Pinkypants and myself are both in the bed trade, and have both taken advice on this matter, and have both been given the same advice.

By the way someone said earlier that DSR's weren't exempt because they don't take into account the retailers ability to resell the item as new. Well the exemption is nothing to do with being able to resell the item as new, it is to do with contamination with body fluids, just the same as underwear.

As you wish, however as you brought up having had the advice of a judge I thought you might like to clarify and ask said judge for further details of these cases he/she was aware off and put the matter to rest.

I am also curious as to why when you had such expert advice you decided to repay the OP rather than see them in court ?

For what it is worth, in the highly unlikely event of me buying a mattress on line from you then finding it unsuitable, and you refusing to refund under DSRs I would be perfectly happy to issue proceedings against you with every expectation of winning.

fthl

I've done a fairly reasonalble search, westlaw, google, bailii. No reported cases I can find.

I realise that you seem to think that you know all there is to know about retail law. However it is obvious that you don't.

Really? I accept I don't know it all, but I think I'm fairly up to date. I think you are just upset because you've been called.

fthl

I am also curious as to why when you had such expert advice you decided to repay the OP rather than see them in court ?

And change his t's and c's following my advice.

allstar4eva

I am also curious as to why when you had such expert advice you decided to repay the OP rather than see them in court?

fthl wrote: »

And change his t's and c's following my advice.

I believe that Tim refunded me due to the fact that although I broke the seal I did not sleep on the mattress - I only ever tried it with the plastic cover on (my wife had opened the mattress to air it).

Tim seems to believe that sleeping on a mattress (without a mattress protector?) renders the item unreturnable under DSRs and this highlights why I believe the Ts and Cs are still ambiguous. Tim needs to state exactly what a customer must do in order to be able to return the item under DSRs and his satisfaction guarantee - specifying whether or not you can open the item, sleep on it, what type of mattress protector must be used etc (a mattress protector that is not waterproof will not stop body fluids touching the mattress!).

Tim encouraged me over and over again to try sleeping on the mattress for several nights. Had I done this would I have have been able to return the mattress under DSRs? On the one hand offering a 100% satisfaction guarantee then on the other hand if you want to return the mattress under DSRs then I suspect Tim would argue that you should not sleep on it - as inspecting a good at home the same way you would in a store would probably not extend to spending a night on it! However it would be interesting to see how a judge would interpret this bearing in mind the site terms and conditions as the satisfaction guarantee encourages customers to sleep on the mattress and return it if not happy!

Perhaps Tim could explain the difference between returning a mattress under DSRs and returning them under his satisfaction guarantee? What exactly is the difference and why is it there? I suspect it is possibly the 'we will always try to find a suitable alternative first' bit of his Ts and Cs? Again I ask if this means a customer sleeping on a mattress for 7 nights why not just state it - it is key information! A customer cannot comply with what they do not know about!

Tim does not seem to like to discuss facts. 'A judge said this', 'A chiropractor said that'. Please name sources so that your comments can be verified.

gordikin

Tim,

you found the time to mention what a 'judge' said...please find the time to back it up!

nickyt

I was not going to post on this subject again but I STILL think Tim uses this site to promote his company. The fact that he has also now stated that without him there would be no La romantica mattress is even more reason for him to promote these mattresses. ( sorry not had time to go through and quote where he stated this yet will try later.)