Distance selling regulations and food -

lostconsumer

Merry Christmas!

I have read the Distance selling regulations and it points out that sellers should tell you clearly what rights of refund you have, are they also obliged to tell you clearly when you don't have any rights of refund eg with food?

I ordered a chicken from the M and S internet site, for collection in store ( not home delivery) , due to the awful weather I realised that I wasn't going to be able to get to the store to collect it and tried several times to cancel it without success. I was the told that I am only going to get a 50% refund back and they have quoted the Distance Selling Regs at me, but I am not sure if they are being selective here because;

• The distance regs state that sellers should give the customer information before they decide to buy. But on the webpage for the chicken it did not mention either that the order could not be cancelled or I would forfeit 50% if I couldn't collect it.

• It was only after ordering the chicken and submitting my card details, that I received an email from M and S to confirm my order. It was then I was informed that if I didn't collect my food I would only get 50% back.

Shouldn't this information have been made clear before I placed the order?

• Also on that email it said " please note that this is only an acknowledgement of receipt of your order and your offer to purchase these items is not legally accepted until we send you an email notifying you that the items have been dispatched to you"

The OFT states that "It is in your interest to make clear to your consumers exactly when a binding agreement will be reached. For example, you need to explain if the contract becomes binding when the customer places the order or only when you confirm that you have accepted their offer to buy"

But shouldn't this have been made clear to me before I decided to buy as I was surprised to find after paying for the item that I had only apparently "offered" to purchase these items and that the offer was not legally accepted yet.
Moreover, if my order hadn't been legally accepted, then surely I could cancel my order if it didn't legally exist!

I have read somewhere ( the OFT site ?) that food regs apply to home delivery, but the chickenn was not going to be dispatched to me but to a M and S food store, where it could have been resold ( and probably was!) Ironically if it had been for home delivery, it would have been cancelled by M and S as they were having problems delivering according to their website.

It is only 6quid but I feel that the whole thing is loaded in favour of the store, they didn't provide the information before I ordered. Then they say after I had paid for the chicken, that I had only "offered" to buy it and that it wasn't legally accepted at that time, but wouldn't let me cancel it either.

Browntoa

The cooling off period and right to cancel do not, however, apply to contracts for the sale of the following goods:

• Goods made to the customer’s specification (these are known as “bespoke” goods);
• Perishable goods, for example fresh food and flowers;
• CDs, DVDs and tapes once the packaging has been unsealed;
• Newspapers and magazines;
• Betting, gaming and lotteries.

neilmcl

Have you read the DSRs as you say? You should then know that perishable items, such as fresh foods, are exempt.

Edit: Browntoa beat me to it.

lostconsumer

That is the part M and S have quoted to me.
BUT the issue for me is that the DSR guidelines state that information should be given to the customer before they make a purchase.
I only learned about this regulation after I had made and paid for the order.

neilmcl

But the DSRs DO NOT APPLY.

robpw2

lostconsumer wrote: »

That is the part M and S have quoted to me.
BUT the issue for me is that the DSR guidelines state that information should be given to the customer before they make a purchase.
I only learned about this regulation after I had made and paid for the order.

no ... you made an offer and m and s have sent you the terms .. their email quite clearly states acceptance of your offer will be sent at the time of dispatch ...

this means you could have cancelled at any time up untill that second email was recieved

lostconsumer

That is how I have interpreted it. But they would not allow me to cancel at any time before the second email was sent.

shaun_from_Africa

Isn't that a bit like stating that M&S didn't inform you of the alcohol licencing act, and because of this you are entitled to a refund on the chicken?

I know this sounds stupid as the licensing act doesn't apply to sales of chicken, but in effect this is the same as the DSR's and your purchase.
The DSR's don't apply to the sales of fresh food, so there is nothing for the retailer to advise you of.

robpw2

lostconsumer wrote: »

That is how I have interpreted it. But they would not allow me to cancel at any time before the second email was sent.

did you ring them and ask ?

i would contact their customer services and see if they will show any goodwill ... otherwise you will have to accept the terms which i believe you accepted , also when you go through the chekout process on M and S do you not have to accept terms and conditions .. just because you chose not to read them doesn't mean they do not apply

Browntoa

they have shown goodwill already by offering a 50% refund , which considering they don't have to is quite generous (yes they may have resold it but possibly not got the 50% refund back)

George_Michael

I have read the Distance selling regulations and it points out that sellers should tell you clearly what rights of refund you have, are they also obliged to tell you clearly when you don't have any rights of refund eg with food?

Do you mean that they should tell you about not having a right of refund for food as in the paragraph below. (easily found on the M&S website under the returns and refunds section.)

Which products are excluded from the refunds policy?

The following items are excluded from our returns policy: gift cards, beauty, food, food gifts, food to order, earrings, flowers and plants, wine, hampers, duvets, pillows, bra accessories, technology, large domestic appliances, made to measure shirts, made to measure curtains and furniture.

These products can only be returned in accordance with your legal rights.