Clarification of reg 17 of Distance Selling Regs

BeerMonster

Hi,
I am looking for clarification of regulation 17(7) of the Distance selling Regs 2000.

The regulation states...

(7) Where, at any time during the period of 21 days beginning with the day notice of cancellation was given, the consumer receives such a request as is mentioned in paragraph (4), and unreasonably refuses or unreasonably fails to comply with it, his duty to retain possession and take reasonable care of the goods shall continue until he delivers or sends the goods as mentioned in paragraph (5), but if within that period he does not receive such a request his duty to take reasonable care of the goods shall cease at the end of that period.

Its the last bit i'm interested in..

but if within that period he does not receive such a request his duty to take reasonable care of the goods shall cease at the end of that period.

I currently have a huge 4 seater sofa cluttering up my living room for which the vendor is stalling/refusing to refund the money for. It's been 3 weeks since it was delivered and I rejected it as it was not new as ordered. I expect that I am going to be left with it and I'm certainly not going to return it while I'm still owed money.

I want to know if I can sell/dispose of the sofa now that the 21 days are up. The wikipedia page on the Distance selling Regs says...

If the supplier has not tendered the goods within 21 days after notice of cancellation was given, the consumer can treat them as unsolicited goods.

meaning that I can use/sell/dispose as I see fit BUT there is nothing about that in the regulations! Is the wikipedia page wrong? or is this right to take ownership spelled out somewhere else (case law? EU directive?)

I want to be sure I have the right to take ownership of the sofa before I put it in the skip/on gumtree. Otherwise the seller will claim that it's gold plated.

Thanks for any help!

unholyangel

Firstly, I wouldn't take legal advice from wikipedia. While a lot of the content may be accurate......it is user created and is not 100% accurate.

Second, technically you need to take specific steps. At present they are uncollected goods (and are not now, nor have they ever been unsolicited). In order to sell them, you would need to notify the owner twice in writing. You cannot sell for a knock off price, you must get a fair price and you should keep that money available - in a separate account if possible - for 6 years as this is when statute of limitations kicks in.

However, the situation is muddied because because effectively you are rejecting for a refund and they are refusing. If you sold/disposed of it (or failed to take reasonable care of it in general) and you do eventually get a refund.....they could claim against you for breach of statutory duty. Was the purchase covered by DSR's? Have you notified them that you wish to cancel in writing? How did you pay for the item?

If you can perhaps provide more details on the transaction etc....perhaps we can help you with regards to that

BeerMonster

Thanks for the quick reply. The transaction is covered by the dsrs and I've already rejected the item and demanded a refund and since it hasn't been forthcoming I've begun the process of claiming a S75 refund on my CC.

My only issue is that I cant store a huge sofa for any length of time.

The information you gave about uncollected goods do not relate to my situation. Specifically where a seller has sent an unsuitable item.

I am hoping that someone here can point me to some regulations/case law/statutory guidance which specifically relates to a sellers failure to collect the goods within the 21 days stated in reg 17(7) of the DSR's.

wealdroam

Sorry, I cannot answer your question, but please consider this...

Whilst the transaction may well be covered by the DSRs, it is my opinion that you would be better off rejecting the goods under the Sale of Goods Act... not conforming to contract.

Firstly, you haven't said that the vendor is a business.
Although we can assume this because you state the transaction is covered by DSRs.

Secondly, there is nothing in the DSRs about remedies for faulty goods.

Thirdly, if the vendor has stated appropriately that upon cancellation under DSRs the consumer must cover the cost of return, then that is what you must do. Recovering that cost is a seperate issue.

What do the vendor's T&Cs say about returning goods under DSRs?

BeerMonster

Hi wealdroam,

Yes the vendor is a business.

It is clear from the Office of Fair Trading guidance on the DSRs that where the goods are faulty/substitute etc then the vendor is responsible for the cost of collection regardless of any contract/Ts&Cs. It may be that this is inferred from the sale of goods act. It certainly would be rediculous for a customer to be forced to pay for return of something which was not as ordered. The DSR's do state that the vendor cannot require return of the goods while he still holds the money.

My concern is that the vendor won't want the sofa back. To me a second hand sofa is worthless. I don't want the thing in my house now never mind having to keep it for 6 months.

bod1467

BeerMonster wrote: »

The DSR's do state that the vendor cannot require return of the goods while he still holds the money.

Indeed they do - sort of. (Vendor has 30 days from cancellation to refund, regardless of whether goods have been returned). Enforcing this is another matter.

You either cancel the order under DSRs, or you cancel under SOGA (not conforming to contract - Sold Not As Described in this case). With DSR then YOU may be liable for returns costs; with SOGA then THEY are liable.

Rex_Mundi

BeerMonster wrote: »

Thanks for the quick reply. The transaction is covered by the dsrs and I've already rejected the item and demanded a refund and since it hasn't been forthcoming I've begun the process of claiming a S75 refund on my CC.

I think you've jumped the gun on a s75 claim.

Reg 14 of DSR allows the retailer up to 30 days to refund you from the date of your cancellation. It hasn't been 30 days yet.

Your CC company may ask you to wait a bit longer before you make this claim through them.

BeerMonster

Rex_Mundi wrote: »

I think you've jumped the gun on a s75 claim.

Reg 14 of DSR allows the retailer up to 30 days to refund you from the date of your cancellation. It hasn't been 30 days yet.

Your CC company may ask you to wait a bit longer before you make this claim through them.

As the CC company is joint and severally liable I don't actually have to claim the refund from the vendor at all and the CC company cannot require that I claim from the vendor first however reason and common sence says that getting a refund from the vendor is fairer, quicker etc. With a s75 refund the CC company is required to put me back in a position as if the transaction had not been made. That means refund of any interest paid as well as the purchase price.

As the vendor has not yet made the refund and is not returning calls/emails it makes sense to get the ball rolling on the s75 refund and the CC company seemed ok with that. After all, if i wait and the company goes out of business then the CC company will end up out of pocket so sooner is better for them plus it helps to pressure the vendor.

Reg 14 also says that the refund should be as soon as possible which as refunding a CC takes 5 minutes then any more than 1 working day is a breach of this regulation. The trouble is getting anyone to enforce that Trading Standards it seems are eager to avoid doing any enforcement which is why rogue businesses like this are able to operate with impunity!

BeerMonster

Also, I phoned consumer direct today to ask about my sofa disposal dilemma. They told me that after 30 days I can write to the vendor giving him 7 days to collect the sofa or I will assume that he wants me to dispose of it for him. Since my extensive googling on the matter hadn't uncovered this right, I asked where this comes from. The Supply of Goods and Services Act 1982 I was told. I've had a look at it and can't find any mention of that in the act.

Is there something in that act that I've missed or have I been given a load of BS by a call centre idiot?

bris

I think you are trying to be a little bit to clever for your own good here. You either reject it under DSR in which case then you need to get the sofa back to them, (if they sent you the required info) or you reject it under SOGA, you seem to be trying to do both. So which one is it?
let the thread know which one you want to reject it under and the members can help from there.

BeerMonster

Ok, i've obviously not explained myself properly.

The sofa has been rejected and if the vendor wants it back he has to refund the money and collect the sofa. I am not responsible for returning it to him. Both DSR's and SOGA apply, it's not an either/or. The vendor does not to get to choose what laws he wants to comply with and I don't have to choose what rights I have as a consumer. Besides I have an email from the vendor saying he will refund and collect (though he has done neither so far). This is not my issue at all.

My problem is this and only this. I don't believe that the vendor will ever collect the sofa (I'm dubious that he will ever issue the refund either). What do I have to do to legally be able to dispose of it. What legislation, case law, common law or whatever gives me the right to dispose of it. There must ultimately be a way of getting it out of my house. The quicker the better!