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GraceCourt

In essence, they supplied two "flat pack" items that were both damaged when they arrived. A replacement door was requested for each, but the company refused, stating that first the damaged items needed to be sent back to them, at which time a refund of up to £15 postage would be considered. When this was challenged, they then changed their position, stating:

... the under sink unit is to be returned at your own expense as your concern is solely with the quality of finish which is representative of the unit at this price...

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The seller was then advised that both were being rejected as not of merchantible quality and a refund was requested, which has been refused. I became involved too late for using the Distance Selling regulations, which are not appropriate anyway because this is not a "change of mind". Although a credit card was used by the buyer, the seller uses PayPal to provide merchant card services and PayPal has advised that there is no PayPal protection because the purchaser did not actually use a PayPal account to make the payment, explaining that the buyer chose not to log-in or create a PayPal account when the card payment was being made.

[TEXT DELETED BY FORUM TEAM] at the moment, the buyer is seeking redress through the card company, either through a chargeback or using Section 75 CCA 1974 rights... but the involvement of PayPal means that the situation is not as clear as it would otherwise be for a S.75 claim.

And the other fallback - County Court proceedings using Part 27 Civil Procedure Rules - isn't available because although Belfast is in the UK, it is outside the jurisdiction of the Court in England and Wales.

So, be warned... if you are using a credit card, the PayPal route is best avoided. [TEXT DELETED BY FORUM TEAM]

GraceCourt

GraceCourt wrote: »

... the buyer is seeking redress through the card company, either through a chargeback or using Section 75 CCA 1974 rights... but the involvement of PayPal means that the situation is not as clear as it would otherwise be for a S.75 claim.

As feared, American Express Europe Limited (Amex) has refused the S.75 liability as the money went to Paypal and not directly to the trader.

However, Amex are still one of the two second parties to the purchase, and as the other second party is outside the jurisdiction of the English Court, it might well be possible to sue Amex because the goods weren't of "Merchantable quality" (Sale of Goods Act 1979, as amended by Reg.5 of The Sale and Supply of Goods to Consumers Regulations 2002).

So the original warning is repeated, stronger than ever - do not, under any circumstances, pay through Paypal with a credit card if you might subsequently need the protection of Section 75 CCA 1974!

GraceCourt

... my original telephone conversation with Paypal, having been referred to them by the American Express customer service department, was with staff based in the Republic of Ireland, who genuinely didn't know any details of Paypal's subsidiary in England and Wales. A Companies House search shows three companies at Whittaker House, Whittaker Avenue, Richmond, Surrey TW9 1EH - these are:

• Paypal (Europe) Limited, company number 04056498;
• Paypal (UK) Limited, company number 05468033; and
• Paypal SE, a very strange sort of corporation that I've not seen before - it's described as a "European Public Limited-Liability Company" and listed with the company registration number SE000007 - so I don't think that there can be many of these!

The interesting part is that every single e-mail received from Paypal shows their corporate details as:

PayPal (Europe) S.à r.l. & Cie, S.C.A
Soci!t! en Commandite par Actions
Registered Office: 5th Floor 22-24 Boulevard Royal L-2449, Luxembourg
RCS Luxembourg B 118 349

As a consequence, I have included - in every single one of my e-mails, which have all been acknowledged - a request for "the registered office in England or Wales of the Paypal subsidiary that received payment from American Express (Europe) Limited", but that is ignored, every time.

I therefore looked at the legal agreement between Paypal users and "Paypal"... I wanted to know what "Paypal" means legally, i.e. which company... and I was astonished to find that it's the Luxembourg company again! From the legal agreement:

“PayPal,” “we,” “us” or “our” means PayPal (Europe) S.à.r.l. & Cie, S.C.A. with registered head office at 22-24 Boulevard Royal L-2449, Luxembourg and includes its successors and any person to whom it has assigned it rights under this Agreement.

So despite the fact that Paypal advertises itself as a safe way to pay for purchases, they seem to be taking an awful lot of trouble to deal with UK customers in a way that keeps them out of reach of the Courts, because you cannot serve legal process on anyone who is outside the jurisdiction, and NOWHERE on their site does it give an address for service in the UK. Reading through that agreement, it looks as though your only legal redress is their "disputes resolution procedure", in other words if you make a payment via Paypal (even if you use a UK credit card) to a seller in Northern Ireland, you lose all of the consumer protection that you would otherwise have under the Sale of Goods Act 1979, as amended by Reg.5 of The Sale and Supply of Goods to Consumers Regulations 2002, as well as your rights under S.75 Consumer Credit Act 1974.

In fact, the Paypal site at http://paypal.co.uk might not even be compliant with Regulations 6 and 7 of the Companies (Trading Disclosures) Regulations 2008, made under Sections 82 to 85 of the Companies Act 2006.

I have therefore advised the original purchaser not to use Paypal for any financial transactions whatsoever... and neither would I - I value my consumer rights and see no reason to throw those away by using Paypal's "services".

wealdroam

You tell us that the seller is in Northern Ireland and therefore outside the England and Wales court system.

Is there an NI equivalent to the county court?

I am not a lawyer (can you tell? ), but surely a UK seller cannot be outside the reach of the Sale of Goods Act, can it?

GraceCourt

wealdroam wrote: »

Is there an NI equivalent to the county court?

I'm sure that there will be... in Scotland, there is an equivalent to Part 27 proceedings (Small Claims track) in the Sheriff Courts... claims above £5,000 are also dealt with in the Sheriff Courts, but under the "Summary Cause procedure".

wealdroam wrote: »

I am not a lawyer (can you tell? ), but surely a UK seller cannot be outside the reach of the Sale of Goods Act, can it?

It depends where in the UK... for example, Section 11(1) of the Act doesn't apply to Scotland, which has its own Courts and legal systems (criminal and civil).

Parts of the Act do apply to Northern Ireland, but the problem is jurisdiction - the "cause of action" arises in one jurisdiction (England & Wales) and the seller is in another jurisdiction (N. Ireland). It's a more common problem than you might think - you might have a bank account with one of the HBOS (Halifax Bank of Scotland) Group of companies, but if you want to make a claim against them, it depends which company - if it's Lloyds or the Halifax Building Society, your claim will be served on the relevant registered office (in England) and should be commenced in the (English) County Court, but if it's Bank of Scotland, it has to be served at the Bank's registered office at The Mound, Edinburgh, and commenced in the (Scottish) Sheriff Court. You cannot serve legal process issued by one jurisdiction in the other jurisdiction!

Oliver14

You seem to be a little confused. Paypal is a payment method. If you buy something of a company your contract is with that company. So if there is a problem with that company it's the company you need to deal with not paypal.

In fact paypal buyer protection gives you a guaranteed way to get refunded if there is a problem or the item does not arrive (within 45 days) if the seller refuses to cooperate. So in fact it's advantageous to use Paypal for that reason.

GraceCourt

arcon5 wrote: »

Am I missing something but nowhere on their website do they say they are a Limited company? But you have gone to some efforts to make a point you cannot find any records of their incorporation.........

In Great Britain (Northern Ireland is part of the UK but it is not in Great Britain) the Companies Act 2006 (as amended) and the Electronic Commerce (EC Directive) Regulations 2002 require prescribed information, including whether a trader is a sole trader, partnership, or limited company, on their "business documents" and on their Web site. The whole point of this is so that customers and others trading with the seller/provider know exactly who they are dealing with, and their legal trading status.

The one thing that is clear about these people is that there is no record of any such companies at Companies House.

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if you need to commence proceedings against them (in the Northern irish courts, of course), how do you know whose name to put on the Notice of Claim? You don't, hence the problem.

GraceCourt

We seem to be going over old ground here... so, for the last time:

Oliver14 wrote: »

You seem to be a little confused. Paypal is a payment method. If you buy something of a company your contract is with that company. So if there is a problem with that company it's the company you need to deal with not paypal.

No... if you buy something from a company with a credit card (or indeed using any regulated credit agreement), your contract is jointly with that company and with the credit provider, hence the reason why you have S.75 Consumer Credit Act 1977 rights.

PayPal isn't a credit card company, and there's no regulated credit agreement between the buyer and PayPal, so no S.75 rights.

Oliver14 wrote: »

In fact paypal buyer protection gives you a guaranteed way to get refunded if there is a problem or the item does not arrive (within 45 days) if the seller refuses to cooperate. So in fact it's advantageous to use Paypal for that reason.

No, it isn't guaranteed, not at all. Look at the User Agreement. The refund is at PayPal's discretion, and if they turn down the claim, you're stuffed, because they are dealing with you from Luxembourg, where you can't serve them with a Notice of Claim using (usually) Part 27 CPR 1998, i.e. using the Small Claims Track.

And your rights are much less than they would be otherwise, even allowing for the loss of your S.75 rights... PayPal won't make any refund whatsoever unless you send the goods back to the seller at your expense, which wouldn't be the case when exercising your rights under the Sale of Goods Act 1979, Supply of Goods and Services Act 1982, or Sale and Supply of Goods Act 1994.

Azari

Oliver14 wrote: »

In fact paypal buyer protection gives you a guaranteed way to get refunded if there is a problem or the item does not arrive (within 45 days) if the seller refuses to cooperate. So in fact it's advantageous to use Paypal for that reason.

Except, of course, that that is a load of utter nonsense.

If you order something and pay with paypal and the item does not arrive you go to the paypal dispute system.

After a period of time you will most likely get an email from paypal saying that they have found in your favour but that, 'unfortunately' there is no money in the seller's account so they cannot refund you.

Paypal is a complete waste of time as far a buyer protection is concerned and should be avoided at all costs.

GraceCourt

I see that all data in these posts that identifies the trading name of the company/partnership/sole trader concerned have been deleted "pending investigation" - all of the reasons for doing that as an interim measure are understood, but I've taken care to ensure that everything posted by me is factual and accurately reflects what happened, as a warning for other forum members.

I look forward to the identifying data being replaced as soon as this is verified.

And a check today of the seller's web site and Companies House reveals that the company/partnership/sole trader concerned is still trading anonymously, which in England and Wales would be a criminal offence under Regulations 6 and 7 of the Companies (Trading Disclosures) Regulations 2008, Part 41 of the Companies Act 2006 and the Electronic Commerce (EC Directive) Regulations 2002. Whether it is or isn't in Northern Ireland is a moot point.

Azari

GraceCourt wrote: »

I see that all data in these posts that identifies the trading name of the company/partnership/sole trader concerned have been deleted "pending investigation" - all of the reasons for doing that as an interim measure are understood

That just means that MSE have been threatened and immediately caved in.

Look at the dates of the sticky threads at the top of the index to this forum.

Those posts speak of 'investigations' but nothing has ever been forthcoming.

The companies have effectively silenced all criticism here.