Bedding ordered in Majorca - wrong size

NCISROCKS

....tambourinegirl get your hubby to read this thread before you post again. Are you and he experts in Spanish/EU consumer law?

NCISROCKS

TambourineGirl wrote: »

According to my husband (a lawyer) they have 6 years to raise an action against you, which is a mighty long time to be holding onto an unused, neatly packaged mound of bedlinen.
Alternatively, you could take the £299 discount and put it towards buying a stash of the European sized duvet covers listed on Amazon.co.uk - try a search for "duvet cover 220x240". There are 97 different ones, all for under £30.

Ask your husband if as in this case, does that apply to items bought in Spain, the wrong item delivered and not yet paid for?

TambourineGirl

My husband has read the posts. I'm afraid you were almost right when you denounced me as wrong; I was incomplete, and made an assumption that the OP would be looking to hold on to the goods if they were not collected.

The company themselves claim that the contract (ie the order) is governed by English law, but even if they were as confused about that as they seem to be about the size of their own bedding, any recovery action they could raise against the OP would be done through the English courts. As such they have 6 years to raise any action against her.

Legally, she is entitled to give them, in writing, and preferably through some form of signed-for special delivery, a reasonable amount of time to collect the goods before she can dispose of them. She can dispose of the goods by sending them back to the company, and she would be entitled to raise a small claims action to recover the cost of sending them. She can dispose of them by binning them, but as a responsible global citizen she might balk at putting £1000 worth of bedding in the skip. She could also make a poor family very happy this Christmas and donate them to a local charity, possibly paired with a set of the bedding from Amazon.

The grey area comes if she wants to give them reasonable notice and then keep the goods for herself. I should not have assumed this is what she wanted.

NCISROCKS

TambourineGirl wrote: »

My husband has read the posts. I'm afraid you were almost right when you denounced me as wrong; I was incomplete, and made an assumption that the OP would be looking to hold on to the goods if they were not collected.

The company themselves claim that the contract (ie the order) is governed by English law, but even if they were as confused about that as they seem to be about the size of their own bedding, any recovery action they could raise against the OP would be done through the English courts. As such they have 6 years to raise any action against her.

Legally, she is entitled to give them, in writing, and preferably through some form of signed-for special delivery, a reasonable amount of time to collect the goods before she can dispose of them. She can dispose of the goods by sending them back to the company, and she would be entitled to raise a small claims action to recover the cost of sending them. She can dispose of them by binning them, but as a responsible global citizen she might balk at putting £1000 worth of bedding in the skip. She could also make a poor family very happy this Christmas and donate them to a local charity, possibly paired with a set of the bedding from Amazon.

The grey area comes if she wants to give them reasonable notice and then keep the goods for herself. I should not have assumed this is what she wanted.

So much wrong there, but, you claim hubby has looked at this...as an example, tell me how he'd propose raising a small claims action to recover the costs of returning unpaid for goods to Spain. Is there an online EU template?

TambourineGirl

I'm sorry, NCISROCKS, have I done something to offend you?

I wouldn't dream of advising someone on how to raise a small claims action in Spain or through the EU small claims court. It's not really relevant here as she would not be pursuing them; they would be pursuing her. It would still be the English court handling the EU small claims process in this country, and it would be more likely to be an unjustified enrichment claim based on English law (as the unjustified enrichment happened here) rather than breach of the contract agreed in Majorca, as there is significant evidence that they breached that themselves. Still, people can raise a small claims action based on any spurious and unsubstantiated basis; whether they win it is another matter.

Look, I was merely browsing the forums and put 2 and 2 together (from the OP's assertion that she wasn't going to do anything further, that they would have to pursue her, and that they hadn't got a case against her) and assumed, possibly wrongly, that her plan was to hold onto the goods. I felt that I could helpfully warn her that they could decide to pursue her in 5 years and X months if she doesn't resolve the issue. I also thought, having recently had to source fitted sheets for a custom mattress, that I would have a quick stab at seeing if I could find a duvet cover for her, since it sounds like she has some lovely bedding that she would like but for the issue of size.

I have already apologised over any confusion regarding the necessity of holding onto the bedding - if the OP explicitly states that she intends to dispose of it if it is not collected in a reasonable time, she may do so. Whether she can tell them to collect within a reasonable time or she will regard the goods as ceded to her would be a matter of opinion - there is no clear legal answer, and they could well pursue her even if there was. It is almost always far better to resolve things like this amicably, because any twit with a small sum of cash and a litigious nature can raise a small claims action, even if they're blatantly wrong, and it's stressful even if you win.

Please do explain what else I have done to justify the "so much wrong there" comment.

tbw

Please - I don't want to (however accidentally!) create any ill feeling here - there's too much of it already in various forums!

I really do appreciate all of the advice that has been given - its all food for thought as, currently, I feel like I am walking in treacle over ths problem.

Just to clarify, the goods were ordered in Majorca via an English rep/presentation for English customers. I have no problem with the quality of the goods (expensive but lovely stuff) and there was no pressure selling involved.

The company appear to be incompetent - initially they sent an overlayer that was too small, eventually agreed it was the wrong size and tried to say they had sent a double instead of a king (rubbish cos it doesn't equate to any UK or EU size that I can locate - its a manufacturing error I think). They then sent a larger replacement which is better but not perfect (I could live with it though).

The duvet is much bigger than I ordered and does not equate to any of the sizes on their order form. The order form appears to have been designed for UK customers as its got all UK standard bed sizes listed (not continental ones). The salesman was hot on sizings and emphasised the need to check carefully - I checked and my bed requires UK king size stuff - which is what I ordered and they agreed to provide.

They've sent a completely different size which does not fit any of my existing bedding, I can't easily get suitable covers and certainly its not a size that any of my usual suppliers (M&S and the White Company provide). The company now says they don't make the size I ordered (or any of the UK sizes listed on the order form!) and its all a mistake. The salesman shouldn't have had that order form and he shouldn't have taken my order (nor, presumably, the orders of the 6 or 7 other people who placed orders at the same time).

They offer only 2 solutions - I keep all the stuff at a £299 discount OR return the duvet only but keep the rest. Keeping everything but the duvet sounds fine - until you realise that they will then remove the substantial discount I had for ordering a complete set and want me to pay the full price (several hundred pounds more so I actually end up paying nearly as much for less items!).

They are obsessed with the statement 'we do not have a returns policy'.

I do not want to keep any of the goods as neither of their solutions is acceptable and I just want them to take the b***** stuff back under SOGA definitions. I have packed it all up and, although I am happy to keep it safely for a sensible time to allow them to arrange collection, it is in 2 huge boxes and I'd like it out of the way before Christmas! I'm not after something for nothing, they can't supply what I ordered (and apparently never could) so I want them to take the goods away asap.

They have sent the wrong stuff, its no good to me, I have given them the chance to rectify the problem, they have confirmed that they cannot rectify the problem because they do not manufacture the right sizes but refuse to collect the goods. I think I have been reasonable.

tbw

They are still sticking to their 'we do not have a returns policy' mantra. They insist that I MUST either keep the whole order (including the duvet which is too big and I cannot use ) at what they insist is a wonderful discount OR I can return the duvet and pay for the rest of the order as separate items. I will then lose the discount I was originally given for ordering the whole 'package' and will have to pay separately for each item - this comes to £909 instead of the original £999 and obviously means I will be paying through the nose and will end up with less goods for almost as much money ! The whole point of ordering the complete package was that there was a big incentive discount.

Its unbelievable that they think either of these options is going to appeal to me.

arcon5

If it's just the duvet thats wrong, can't they just manufacture one to the correct specification and resolve the matter like that........

tbw

arcon5 wrote: »

If it's just the duvet thats wrong, can't they just manufacture one to the correct specification and resolve the matter like that........

Well, I suppose they could have done but I doubt they would have wanted to do that as it would have cost them to alter their equipment.

Anyway, it no longer matters - cos I've just this minute got off the phone to them yet again and, following my insistence this morning that they need to speak to their legal people because they hadn't got a leg to stand on, they have capitulated!!! They have agreed to take everything back and UPS are collecting it all next week. So, a great result and I am delighted with it. Its a shame though that they couldn't supply the right size as the stuff was excellent quality - I am currently looking around for another supplier (but it will be a UK firm!).