Mattress Return Distance Selling Regulations

allstar4eva

Yeah. I'll try

Thanks for all the help to all contributors.

allstar4eva

Ok! ok! I couldn't do it :rotfl:

I just remembered that he sent me the wrong mattress protector so the order is technically incorrect. I doubt it will make a difference to them though.

fthl

seems to me that the t's and c's are ambiguous. They might be construed as meaning that you need to pay for the return. Especially by some djs. After all they allow for the company to decide that you need to pay for the return if it thinks you are being unreasonable, it isn't a question of whether you are actually being unreasonable. Not sure how you could argue against that sort of proposition. On the other hand, if the company is seeking to rely on vague t's and c's then they should be construed in your favour.

In your place I think I'd pay for the return, document the condition of the mattress (so you can show you have taken reasonable care of it) and then claim the refund. Then chalk it up to experience and check the t's and c's more carefully next time. I also think the company might want to tweak them a little to make them clearer.

The alternative is four - six months of small claims hassle where you need to look after the mattress and incur outlay to pay for a replacement, all over a delivery charge. The court might also ask why you didn't return it, pay the delivery (or returns) charge and then just sue for that part of the cost.

allstar4eva

Thanks but they have to refund me within 30 days anyway under DSR.

Further the order is technically incorrect as they sent me an incorrect item - the invoice is also incorrect. This is a reputable company according to many users here so why they are behaving this way I do not understand.

allstar4eva

Also they don't actually own the La Romantica Beds factory - that is a different company. The regulations say you must return the goods to the supplier - not the manufacturer??

Also they say charge me for the cost not arrange delivery. How can they "charge" if they are not supplying the return service? I'd be happy to argue this if it came to it although as the order is incorrect I suspect they have to foot the cost anyway.

allstar4eva

Following further correspondence I have sent the email below to Tim...

Tim,

I have informed you that the goods are available for collection. You have to refund me within 30 days of my original request. The Legal position is clear: You did not make it clear in your terms that you want the consumer to return goods and pay for their return (you mentioned charge but not that the consumer is responsible for returning them). Further the goods supplied do not comply with the contract so see section 3.57 and please do the decent thing and collect your items. They are available for collection but obviously you need to let us know before coming in case we are out.

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.
3.56 If you did not include these details in the required written information
then you cannot charge anything. See paragraph 3.10. You can never
require consumers to pay the cost of returning substitute goods –
see paragraph 3.1 for more information.
3.57 If the goods are faulty or do not comply with the contract, you will
have to pay for their return whatever the circumstances.

fthl

I suspect that your case, in practice, is not as good as you might think. You also need to be very clear on which grounds you are seeking a return and refund.

You have stated that the company has said that it will "...arrange for collection by courier which you have to pay for. We would be refunding delivery, but we don’t have to pay for collection"

Unless you are arguing that the t's and c's mean that you don't need to pay, then many djs would see your refusal to arrange the collection as acceptance or affirmation of the contract - you'd lose your right to a refund under the dsrs. Or they'd ask why you didn't arrange the collection, pay the delivery under protest and then sue for that. Irrespective of the merits of a claim, it would be cheaper to sue him and therefore less risky. You run the risk of losing £50 or so, not hundreds.

As for claims under the SOGA, for the mattress protector being wrong, I'd want to know more before advising on any rights because of that.

All in all, having considered what you have posted, this is not a case I'd fight. I wouldn't want the expense, stress and hassle, especially for a case that I'd give only a 50:50 chance of winning. This could end up being costly for you and I get the sense from your posts that it is personal now and that you are refusing to mitigate your losses, costs and refusing to act reasonably. If I get that sense here, then a dj might also too, whether it is true or not. This would be a bad thing.

dmg24

fthl, you have missed the fact that, in case of ambiguity, a court is much more likely to find in favour of the lesser party i.e. the customer. Furthermore, the retailer cannot argue that the customer is being unreasonable solely by them wishing to assert their statutory right to cancel!

I have taken several cases to small claims, and based on the information given I would have no qualms about proceeding here.

devildog

I had just 'earmarked' a bed from his company too Guess it is back to the drawing board for me!!

Tim_Deegan

dmg24 wrote: »

fthl, you have missed the fact that, in case of ambiguity, a court is much more likely to find in favour of the lesser party i.e. the customer. Furthermore, the retailer cannot argue that the customer is being unreasonable solely by them wishing to assert their statutory right to cancel!

I have taken several cases to small claims, and based on the information given I would have no qualms about proceeding here.

If you had been told the truth, then you wouldn't be of the same opinion. That's as much as I'm saying on the matter, as I am taking the OP to court for libel. And before you say anything to that, you don't know the truth.