Delivered to Neighbours

starsteel

I hope someone can help with this.

I ordered an item from Marks and Spencer that was supposed to be delivered (nominated day delivery) on the 7th January. It was delivered late 'due to an unexpected technical problem' and DHL left it with my neighbours on the 13th January.

As I was out of the country for a few weeks by this point, my neighbours decided to return the item, but have no proof of postage and M&S haven't yet received it.

DHL fulfilled their contract with M&S, as they are apparently authorised to leave a parcel in a safe place or with neighbours. However, I'm not sure M&S fulfilled their contract with me.

They failed to deliver my order to my specified address, they failed to deliver it on the nominated day (when I was actually in the country), they failed to leave a note saying it had been delivered elsewhere (as per their T&C below) and I'm not sure how all risk could have passed to me, when my order wasn't delivered to the delivery address specified in my order.

Are M&S right in saying that it's not their problem if it doesn't turn up?

Marks and Spencer terms and conditions state:

Delivery will be to the UK or international address or store specified in your order. If no one is available at a residential or other address at the time of delivery, a note will be left to advise whether your order has been left in a safe place e.g. with a neighbour, or returned to depot.

All risk in the products you order (including risk of loss and/or damage to the products) shall pass to you when they are delivered to the delivery address specified in your order.

We shall be under no liability for any delay or failure to deliver products if the delay or failure is wholly or partly caused by circumstances beyond our control.

unholyangel

Hmmm the way i would interpret their T&C's is that when the item is delivered to the address you provide on your order, liability passes to you.

If you specified your own address and they delivered to your neighbours......this isnt the address you provided them with.

How did your neighbours return it? Do you believe that they did in fact return it?

Anyway, kind of irrelevant given that you havent received the items you should be able to cancel your order without penalty (as per DSR's). Customer can cancel before they receive the items/if items are lost in the post and it cannot be treated as breach of contract.

starsteel

I think I have the distance selling regulations somewhere, so I guess I'll have to write to M&S and quote the relevant section of that, along with their T&Cs, if it doesn't get resolved. The middle paragraph seems to be the clearest indication of responsibility for the goods ordered. Hopefully my neighbours can clarify their return and M&S will receive it soon.

I'd like to think they returned it. Apparently they've got fed up at not being able to get hold of me and sent something back before. It's not worth falling out with them over something I wouldn't be able to prove anyway. I just have to find a polite way of suggesting that they don't need to look after my parcels in future if it inconveniences them!

starsteel

I emailed M&S customer services and, as expected, didn't get a satisfactory response.

I'm going to email customer services one more time before I try the CEO. I've put my email and their reply below and was wondering if anyone has any suggestions.

I'll try reiterating that what they allow their couriers to do (and what my neighbours did) is irrelevant, as what matters is that they failed to deliver my parcel to my specified address, as per their terms and conditions. I'm annoyed that none of this would have happened if they had simply delivered the parcel on the nominated day (which I guess is breach of contract as well).

My email:

I ordered a cashmere throw from Marks and Spencer that was supposed to be delivered (nominated day delivery) on the 7th January. It was delivered late 'due to an unexpected technical problem' and DHL left it with my neighbours on the 13th January.

As, by this point, I was out of the country for a few weeks, my neighbours decided to return the item to our local Post Office (and the Post Office say that they would have 'returned to sender').

Whilst DHL may have fulfilled their contract with Marks and Spencer by leaving the parcel with my neighbours, I do not believe that the contract between myself and Marks and Spencer has been fulfilled, as I have not received my order.

Your terms and conditions state that, "All risk in the products you order (including risk of loss and/or damage to the products) shall pass to you when they are delivered to the delivery address specified in your order." I do not see how 'all risk' could have passed to me, as the throw was not 'delivered to the delivery address specified in [my] order'.

Under section 3.35 and 3.36 of the Distance Selling Regulations (http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf), I hereby invoke my unconditional right to cancel the order I have not yet received and request a full refund.


Their reply:


Thank you for your email about the delivery of the Autograph Cashmere Throw you ordered. I am sorry you have not received this as you expected.

I have had a look into this for you and I can advise that we have a leave safe policy which allows our delivery drivers to leave items in a secure location on the property or with a neighbour if you are not available to accept the delivery. When we delivered this item to your neighbour we fulfilled our delivery promise.

As your neighbour could have held the items until your return, or returned the items to Marks & Spencer directly, or called us to arrange a collection they have taken the responsibility for returning the items via the Royal Mail. If they obtained proof of postage, we can track the return and try to locate the item.

However, I can advise that we have not received this item back into our warehouse and until we receive the item we are unable to process a refund for the throw.

stephb34

I think its a disgrace if your neighbours return your parcel and you end up out of pocket how can that be legal, terms and conditions are doing my head in today.:eek:

halibut2209

Why would your neighbours return something that isn't theirs if you're only away for a few weeks?

mo786uk

hmmmmmmmmmmmmmmmm, messy

technically M and S have fufilled their contract if the terms says its delivered when it gets to your or your neighbours

if DHL delivered it why have your neighbours taken it to the post office?

Chances are someone at the PO has nicked it as DHL have nothing to do with the PO

you might have to take this one on the chin

starsteel

mo786uk wrote: »

hmmmmmmmmmmmmmmmm, messy

technically M and S have fufilled their contract if the terms says its delivered when it gets to your or your neighbours

if DHL delivered it why have your neighbours taken it to the post office?

Chances are someone at the PO has nicked it as DHL have nothing to do with the PO

you might have to take this one on the chin

Marks and Spencer's terms and conditions state that: "All risk in the products you order (including risk of loss and/or damage to the products) shall pass to you when they are delivered to the delivery address specified in your order." They didn't deliver the parcel to the delivery address specified in my order, therefore 'all risk' remains with them.

DHL left the parcel with my neighbours, who decided they had kept it long enough and so they gave it to the local post office (goodness knows why they did that when the royal mail didn't deliver it). Apparently the post office would have kept it for a couple of weeks and then sent it back to the return address on the parcel. Unfortunately, it hasn't arrived back with M&S yet (and there's nothing I can really do about that).

starsteel

halibut2209 wrote: »

Why would your neighbours return something that isn't theirs if you're only away for a few weeks?

Since they've done it before, I'd assume they just don't like things cluttering up their house for more than a couple of days.

The_Pedant

I would add an additional line to your next letter/email based on the following:-
1. The item was not delivered to the address specified (and therefore the only grounds under which the ownership passes to you)
2. You have not yet received the goods you requested
3. You have given them notice that you are cancelling the order under the provisions of the DSR.

Therefore (under the requirements of the DSR) they now have 30 days to refund your order, starting from the day on which the email was sent. You have not yet received the goods by virtue of the fact that they have not stuck to the terms contractually agreed (their T&Cs). As you do not have the goods, the refund is independent of the need for the goods to arrive back (as title/risk has not passed to you).

They may well have a 'policy' for delivery, but this was not part of the terms you actually agreed to.

wealdroam

Just to add to The Pedant's excellent post...

On page 25 of the OFT's Guide to the DSRs it says...

When do I have to refund a consumer’s money if they cancel an order?
3.46 As soon as possible after the consumer cancels, and in any case within 30 days at the latest. You must refund the consumer’s money even if you have not yet collected the goods or had them returned to you by the consumer. You cannot insist on the goods being received by you before you make a refund.

So you can see that they are not allowed to make the refund conditional on the return of the goods.

Clearly, their statement "until we receive the item we are unable to process a refund" is not acceptable.