Distance selling exceptions

bod1467

If you look you'll see I picked item 2 out from a list, where item 1 refers to DSRs. Therefore item 2 is incorrect wrt DSRs. Returns for faults or wrong products are returns under SOGA not DSRs.

Oopsadaisy

bod1467 wrote: »

2. They have to pay for return postage

ONLY if they haven't covered this in their T&Cs.

Yes you're correct, unless it's not as described [in which case the return would be under SOGA]...so best to return it as 'not as described'/SOGA as opposed to a simple DSR return.

isplumm

Grush wrote: »

I recently ordered a new Fossil watch strap for my partner for Christmas from shadestation.co.uk, which cost £30 +p&p.

When ordering it, I added the correct model number off the back of the watch and stated that I wanted a black strap. When it arrived the strap was dark brown.





I phoned them today and explained that it is the wrong colour and they replied saying they couldn't offer a exchange or refund for the following reasons;

1. The watch model number is unique to that model, relating to both the watch face and watch strap colour, and that Googling the model number will show the same watch with a brown strap. I checked, and it does.
2. When ordering, I checked the box stating the model number was correct (which it was/is) and also that I understood watch straps were non-refundable.

My question is, are they right to refuse a refund under the distance selling rules?

I have read that allowed exceptions to the distance selling rules are if the product is perishable/service has already started/etc but does a watch strap, which is unused and has not even been taken out of the zip-lock bag it came in, really be an allowable exception?

I now have to try to get another strap, in black, at the cost of another £30 (although I will be getting it from elsewhere!).

Did you atually quote that you wanted to return under dsr?

If not - do so ...

Mark

unholyangel

bod1467 wrote: »

If you look you'll see I picked item 2 out from a list, where item 1 refers to DSRs. Therefore item 2 is incorrect wrt DSRs. Returns for faults or wrong products are returns under SOGA not DSRs.

Substitute goods are covered by the DSR's:

(7) Paragraph (5) shall not apply to the cost of recovering any goods which were supplied as substitutes for the goods ordered by the consumer.

(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.

Further to that, in order to send substitute goods, the business must first inform the customer. Pasted from DSR's:
(7) Where the supplier is unable to supply the goods or services ordered by the consumer, the supplier may perform the contract for the purposes of these Regulations by providing substitute goods or services (as the case may be) of equivalent quality and price provided that—

(a)this possibility was provided for in the contract;
(b)prior to the conclusion of the contract the supplier gave the consumer the information required by regulation 7(1)(b) and (c) in the manner required by regulation 7(2).

So unless they informed the customer substitute goods were possible, they shoudn't have even sent them. But regardless, since they are substitute goods, they are responsible.

unholyangel

isplumm wrote: »

Did you atually quote that you wanted to return under dsr?

If not - do so ...

Mark

You don't need to. All you need to do is inform them in a durable form that you intend to cancel.

(3) For the purposes of these Regulations, a notice of cancellation is a notice in writing or in another durable medium available and accessible to the supplier (or to the other person to whom it is given) which, however expressed, indicates the intention of the consumer to cancel the contract.

Grush

Thanks to all for your replies. I'm now in the process of drafting a letter to them requesting a refund under the distance selling rules.

I'm hoping they will recede and offer the refund in full but I'm not going to hold my breath.

As soon as I hear something, I'll let you all know.

Grush

Incidentally, postage and packaging was not charged in the original order.

Grush

I added this to the letter as well, after finding it on the OFT website;

3.38 Unless you have agreed that they can, your consumers cannot cancel

if the order is for:

• services where you have had the consumer’s agreement to start the service before the end of the usual cancellation period and you have provided the consumer with the required written information before you start the service, including information that the cancellation rights will end as soon as you start the service
• goods or services where the price depends on fluctuations in the financial markets which cannot be controlled by the supplier
• the supply of goods made to the consumer’s own specification such as custom-made blinds or curtains. But this exception does not apply to upgrade options such as choosing alloy wheels when buying a car; or opting for add-on memory or choosing a combination of standard-off-the shelf components when ordering a PC, for example
• goods that by reason of their nature cannot be returned
• perishable goods like fresh foods or fresh cut flowers
• audio or video recordings or computer software that the customer has unsealed
• newspapers, periodicals or magazines, and
• gaming, betting and lottery services.

oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

derrick

bod1467 wrote: »

If you look you'll see I picked item 2 out from a list, where item 1 refers to DSRs. Therefore item 2 is incorrect wrt DSRs. Returns for faults or wrong products are returns under SOGA not DSRs.

unholyangel wrote: »

Substitute goods are covered by the DSR's

As are faulty goods

[FONT=&quot]OFTs BUSINESS GUIDE TO DSR [/FONT]
From page 27; -
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.


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bod1467

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