returned items have gone missing in the post

stevieboy308

hi,

i ordered 2 car chargers for my phone on amazon but from a marketplace seller. they arrived, but both were faulty. i contacted the seller who said send them back for a refund, i then asked about them paying for the return postage, they said yes and said to use 2nd class. i sent them back (still got the receipt), after 6 weeks and nothing from them i enquired and they've said they haven't received them, an until they do, they wont refund me. i've said my duty of care was up to me posting them, they've said it's amazon policy not to refund until the items are returned.


cheers steve

the_lunatic_is_in_my_head

Contact Amazon and as you correctly state, your duty of care ends once you hand the goods to the delivery agent. An A-Z claim with the proof of postage may see a refund. Amazon themselves seem to be aware of the law (I recently returned an item to Amazon themselves and they sent an email to state the courier had confirmed pick up from my address so I would now be getting a refund), whether those at CS (don't waste your time talking to the overseas dept, stick with the UK/Irish call centres) and/or those who look at A-Z claims will know your rights is questionable.

Outside of Amazon your only option is small claims really but a chat with Consumer Direct may be useful if no joy with Amazon.

deanos

I presume you paid for postage ?

If so then its up to you to claim from Royal Mail IMO

the_lunatic_is_in_my_head

deanos wrote: »

I presume you paid for postage ?

If so then its up to you to claim from Royal Mail IMO

DRS regs only impose a duty of care upon the consumer, it all comes down to what a judge would decide but one would hope that the buyer handing the item to a recognised delivery agent and retaining proof of this would suffice to fulfil their duty of care.

arcon5

ludovico wrote: »

Contact Amazon and as you correctly state, your duty of care ends once you hand the goods to the delivery agent. An A-Z claim with the proof of postage may see a refund. Amazon themselves seem to be aware of the law (I recently returned an item to Amazon themselves and they sent an email to state the courier had confirmed pick up from my address so I would now be getting a refund), whether those at CS (don't waste your time talking to the overseas dept, stick with the UK/Irish call centres) and/or those who look at A-Z claims will know your rights is questionable.

Can you substantiate this with relevant legislation?

ludovico wrote: »

DRS regs only impose a duty of care upon the consumer, it all comes down to what a judge would decide but one would hope that the buyer handing the item to a recognised delivery agent and retaining proof of this would suffice to fulfil their duty of care.

I certainly hope a judge would not agree with this. RoyalMail are liable for the value of the missing parcel -- and it is the buyer in this case who has the contract with RM. Therefore if the duty of care ended upon dispatch (rather than safe arrival with the retailer) this would be very unfair and put the seller at a significant disadvantage.


However, it was the seller that instructed op to send 2nd class, so IMO the seller should be liable for the [value less RM insurance payout for this service (£46?)].

stevieboy308

arcon5 wrote: »

Can you substantiate this with relevant legislation?




I certainly hope a judge would not agree with this. RoyalMail are liable for the value of the missing parcel -- and it is the buyer in this case who has the contract with RM. Therefore if the duty of care ended upon dispatch (rather than safe arrival with the retailer) this would be very unfair and put the seller at a significant disadvantage.


However, it was the seller that instructed op to send 2nd class, so IMO the seller should be liable for the [value less RM insurance payout for this service (£46?)].

this what i found, (5) and (6)

http://www.legislation.gov.uk/uksi/2000/2334/regulation/17/made


Restoration of goods by consumer after cancellation

17.—(1) This regulation applies where a contract is cancelled under regulation 10 after the consumer has acquired possession of any goods under the contract other than any goods mentioned in regulation 13(1)(b) to (e).

(2) The consumer shall be treated as having been under a duty throughout the period prior to cancellation—

(a)to retain possession of the goods, and
(b)to take reasonable care of them.
(3) On cancellation, the consumer shall be under a duty to restore the goods to the supplier in accordance with this regulation, and in the meanwhile to retain possession of the goods and take reasonable care of them.

(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

(5) If the consumer—

(a)delivers the goods (whether at his own premises or elsewhere) to any person to whom, under regulation 10(1), a notice of cancellation could have been given; or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain possession of the goods or restore them to the supplier.

(6) Where the consumer delivers the goods in accordance with paragraph (5)(a), his obligation to take care of the goods shall cease; and if he sends the goods in accordance with paragraph (5)(b), he shall be under a duty to take reasonable care to see that they are received by the supplier and not damaged in transit, but in other respects his duty to take care of the goods shall cease when he sends them.

(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.

(8) Where—

(a)a term of the contract provides that if the consumer cancels the contract, he must return the goods to the supplier, and
(b)the consumer is not otherwise entitled to reject the goods under the terms of the contract or by virtue of any enactment,
paragraph (7) shall apply as if for the period of 21 days there were substituted the period of 6 months.

(9) Where any security has been provided in relation to the cancelled contract, the duty to restore goods imposed on the consumer by this regulation shall not be enforceable before the supplier has discharged any duty imposed on him by regulation 14(4) to return any property lodged with him as security on cancellation.

(10) Breach of a duty imposed by this regulation on a consumer is actionable as a breach of statutory duty.

the_lunatic_is_in_my_head

Can you substantiate this with relevant legislation?

http://www.legislation.gov.uk/uksi/2000/2334/regulation/17/made

(5) If the consumer—(a)delivers the goods (whether at his own premises or elsewhere) to any person to whom, under regulation 10(1), a notice of cancellation could have been given; or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain possession of the goods or restore them to the supplier.(6) Where the consumer delivers the goods in accordance with paragraph (5)(a), his obligation to take care of the goods shall cease; and if he sends the goods in accordance with paragraph (5)(b), he shall be under a duty to take reasonable care to see that they are received by the supplier and not damaged in transit, but in other respects his duty to take care of the goods shall cease when he sends them.

The consumer has fulfilled their duty of care by using the appropriate methods to restore the goods to the retailer. The right to a refund under the DSR regs can not be linked to the return of the goods and the legislation basically states that the failure of the delivery agent is the retailer's responsibility.

Whether you could argue sending say a £200 piece of jewellery by 2nd class post as a lack of due care remains to be seen but any retailer requesting a return of an item not covered by standard compensation of the consumer's chosen delivery agent, would be wise to advise to send via an enhanced service and cover the costs.

this would be very unfair and put the seller at a significant disadvantage.

The DSR regs are unfair and put the seller at a significant disadvantage in several respects. However they are in place to inspire confidence in online purchasing. I believe the regs are due to changed and one of the areas changing is regarding the return of the goods but I'm not sure on the specifics of the changes.

arcon5

ludovico wrote: »

(5) If the consumer—(a)delivers the goods (whether at his own premises or elsewhere) to any person to whom, under regulation 10(1), a notice of cancellation could have been given; or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain possession of the goods or restore them to the supplier.

This doesn't state at what point the consumer is discharged from their duty of care. The goods also haven't been restored to the supplier.

ludovico wrote: »

(6) Where the consumer delivers the goods in accordance with paragraph (5)(a), his obligation to take care of the goods shall cease; and if he sends the goods in accordance with paragraph (5)(b), he shall be under a duty to take reasonable care to see that they are received by the supplier and not damaged in transit, but in other respects his duty to take care of the goods shall cease when he sends them.

So the consumer is responsible for ensuring the items arrive with the seller. Therefore the duty of care does not cease on dispatch. The consumer according to this IS under a duty of care in respect to ensuring they are restored to the supplier.


Not sure how this supports your argument that their duty of care ends on the dispatch to the seller and not restoration to the seller.

The consumer has fulfilled their duty of care by using the appropriate methods to restore the goods to the retailer.

No it doesn't. Infact it appears quite explicit to me the OPPOSITE.

The right to a refund under the DSR regs can not be linked to the return of the goods and the legislation basically states that the failure of the delivery agent is the retailer's responsibility.

Correct, but in reality that will not happen. Op can ofcourse enforce their legal rights via the courts - but when presented with a counter-claim for their breach of dity of care it would not look so good.

Whether you could argue sending say a £200 piece of jewellery by 2nd class post as a lack of due care remains to be seen but any retailer requesting a return of an item not covered by standard compensation of the consumer's chosen delivery agent, would be wise to advise to send via an enhanced service and cover the costs.

I agree here -- hence the lance sentence in my post.

arcon5

stevieboy308 wrote: »

this what i found, (5) and (6)

http://www.legislation.gov.uk/uksi/2000/2334/regulation/17/made
[snip]

same as above.


So..

ludovico wrote:

your duty of care ends once you hand the goods to the delivery agent

is not correct.. noting this bit inparticular:

he shall be under a duty to take reasonable care to see that they are received by the supplier and not damaged in transit

The goods haven't been received by the supplier.

stevieboy308

arcon5 wrote: »

same as above.


So..



is not correct.. noting this bit inparticular:



The goods haven't been received by the supplier.

at no point does it say the consumer is responsible for returning the items to the supplier. it quite clearly states "he shall be under a duty to take reasonable care to see that they are received by the supplier and not damaged in transit, but in other respects his duty to take care of the goods shall cease when he sends them"

the fact that the item didn't turn up doesn't mean reasonable care wasn't taken.

reasonable care, i would say using the royal mail at the request of the supplier, is taking reasonable care. using a cowboy illegal outfit wouldn't be taking reasonable care. or not sending recorded delivery if that was what was specified.

deanos

Do you have proof of posting ?