returned items have gone missing in the post

arcon5

stevieboy308 wrote: »

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.

Yes it does. It's explicit in the quote you posted:

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

Not sent to the supplier, not transferred to a carrier -- "RECEIVED" by the supplier. The supplier has not received the goods -- therefore your duty of care has NOT ended.

Each parties rights and responsibilities should be in their terms. This will likely also state your responsible to return goods to them and you pay carraige. They can do this under DSRs so long as relevant cancellation information is provided in durable form and provisions made for restoration of goods. (I might quote which part sometime tomorrow as it's getting late now)

Claim whatever you can from the RM, then ask them to cover the shortfall would be my advice and seems to be the fairest way of doing things.

the_lunatic_is_in_my_head

The regs seem clear to me and I think you miss the relevance of the word 'see':

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.

Sending the goods by a recognised delivery agent is seeing that they are received by the seller, however should something go a miss with the delivery agent this is covered by 'other respects' and thus the duty of care does not apply.

You have to look at this from the perspective of what is reasonable, it is reasonable to assume that using say Royal Mail will see delivery, it is not reasonable to deny the consumer their right to an unconditional refund because the the postal service lost the parcel.

Regardless of what happens the retailer MUST refund within 30 days of a cancellation request and pursue any claims of a breach of statutory duty separately at which point a judge would be needed to decide and I believe they would deem the loss of the return not to be the responsibility of the consumer.

If you as a retailer want to be the one to test this then good luck to you, personally as a retailer, assuming that the consumer has proof of the return and there is no cause for suspicion of foul play, I would assume responsibility for the failure of the delivery agent, the law aside it is an exercise in providing quality customer service.

Wayne3765

deanos wrote: »

I presume you paid for postage ?

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

I'd try and get Amazon to sort it out first before chancing Royal Snail's customer service.

I had an item go missing last month , I had proof of posting so I put in a claim and Royal Mail sent me stamps as compensation for the postage AND missing item.

The item wasn't expensive but if I was to go into Tesco to buy another and ask to pay with first class stamps I'd probably get laughed at then thrown out so I've returned the stamps and politely told them to stick them up their letterbox and send me a cheque instead.

arcon5

ludovico wrote: »

The regs seem clear to me and I think you miss the relevance of the word 'see':

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.

Sending the goods by a recognised delivery agent IS seeing that they are received by the seller, however should something go a miss with the delivery agent this is cover by 'other respects' and thus the duty of care does not apply.

:wall:
:wall:

If it goes missing, it has NOT been received by the supplier therefore you still have a duty of care.

It's quite explicit in the goods being RECEIVED by the supplier. 'Other respects' cannot be referring to lost parcels when it's clearly mentioned otherwise!

But it doesn't matter what anybody tells you because your going to read exatly what you want to hear anyway!

You have to look at this from the perspective of what is reasonable, it is reasonable to assume that using say Royal Mail will see delivery, it is not reasonable to deny the consumer their right to an unconditional refund because the the postal service lost the parcel.

Exactly! And since the duty of care is still with op -- it's reasonable to expect op to claim from RM and perhaps chase the company for the shortfall arising from their negligence in telling op to send 2nd class.

Regardless of what happens the retailer MUST refund within 30 days of a cancellation request and pursue any claims of a breach of statutory duty separately at which point a judge would be needed to decide and I believe they would deem the loss of the return not to be the responsibility of the consumer.

In theory, yes.

In reality, this doesn't happen.

If you as a retailer want to be the one to test this then good luck to you, personally as a retailer, assuming that the consumer has proof of the return and there is no cause for suspicion of foul play, I would assume responsibility for the failure of the delivery agent, the law aside it is an exercise is providing quality customer service.

As a retailer also, I would be doing the opposite! If a customer hasn't returned goods to me, you have a zero possibility I will be refunding you!

Why? Because you have the contract with RM and therefore in a position to submit a claim for the loss. I don't have a contract with RM.

Nor do I consider this to be bad CS! Nobody has to loose out as a result of this if it's dealt with correctly (ie adequate insurance).

the_lunatic_is_in_my_head

Sorry I don't know how to do the multi quote thing, hope this clear.

But it doesn't matter what anybody tells you because your going to read exatly what you want to hear anyway!

If you think I want to hear that I should suffer the burden of a missing return you are very much mistaken!

Nor do I consider this to be bad CS!

Sorry, as both a retailer and a consumer, I strongly disagree, however I appreciate it's a matter of opinion.

'Other respects' cannot be referring to lost parcels when it's clearly mentioned otherwise!

If the consumer has acted in a reasonable manner then they have seen that the goods are received by the retailer undamaged, the failure of the delivery agent is not due to a lack of care of their part. In fact it is almost impossible to 100% guarantee that the goods would be delivered, in this respect it would be deemed an unfair term to insist upon such.

You can bang your head against the wall, implying my argument is without merit or that I am not considering your point, but as I stated above you fail to acknowledge the interpretation of the word 'see'.

Exactly! And since the duty of care is still with op -- it's reasonable to expect op to claim from RM and perhaps chase the company for the shortfall arising from their negligence in telling op to send 2nd class.

You miss understand unconditional refund. It doesn't matter what is reasonable with regard to the refund, the legislation is clear in that the money must be refunded and the only deduction permitted is the direct cost of recover of the goods. Not receiving them due to loss means it is not possible to recover them and thus no deduction is permitted.

In reality, this doesn't happen.

Again we come to what a judge would decide and in most cases the relevant written information is not correct, or indeed even supplied, and the consumer's only duty would be to make the goods available for collection. The retailers insistance upon return in such a case could be view as an unfair term at which point the consumer can't be held liable for an action they didn't have to take but did so upon the instance of the retailer.

IF your terms and actions are squeaky clean but you refuse the refund for any reason you could be sued for breach of contract.

Leaving you with the only option of issuing the refund and then pursuing a claim via the small claims procedure. You would need to demonstrate that the buyer failed to show a duty of care, forget the word received but explain to me how you can demonstrate this when the consumer returned via a recognised delivery agent, which in the majority of cases is the national postal system. Expecting anything else places an unfair burden upon the consumer as your instance upon return with zero risk of loss is basically stating the consumer must physically return the goods by hand delivering them. How does using Royal Mail show a lack of care on the part of the consumer?

neilmcl

arcon5 wrote: »

Yes it does. It's explicit in the quote you posted:

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

Not sent to the supplier, not transferred to a carrier -- "RECEIVED" by the supplier. The supplier has not received the goods -- therefore your duty of care has NOT ended.

Each parties rights and responsibilities should be in their terms. This will likely also state your responsible to return goods to them and you pay carraige. They can do this under DSRs so long as relevant cancellation information is provided in durable form and provisions made for restoration of goods. (I might quote which part sometime tomorrow as it's getting late now)

Claim whatever you can from the RM, then ask them to cover the shortfall would be my advice and seems to be the fairest way of doing things.

:wall::wall: No, his duty is to take REASONABLE CARE to ensure that the goods are received. As mentioned, using a recognised delivery agent such as the Royal Mail and following the posting instructions issued by the seller would be seen as reasonable.

the_lunatic_is_in_my_head

I would also add to this that, as above, the point of the DSR regs are to inspire confidence in online shopping and the suggestion of facing a loss due to the actions outside the control of the consumer doesn't inspire confidence at all.

bod1467

I would also add that the OP would be returning under SOGA not DSR, as the goods are faulty. (Although DSR does include reference to faulty goods, it essentially defers to SOGA as to what is required to be done).

The above discussion basically relates to returns under DSR for items not wanted after inspection, which is NOT the OP's position.

the_lunatic_is_in_my_head

Very few Amazon sellers provide the correct written information either prior to, or after the sale in which case it's easier to cancel under the DSR than go via the SOGA as either way the consumer is entitled to return at the retailer's expense for a full refund. I appreciate that's an assumption but one I'd bet good money on.

arcon5

neilmcl wrote: »

:wall::wall: No, his duty is to take REASONABLE CARE to ensure that the goods are received. As mentioned, using a recognised delivery agent such as the Royal Mail and following the posting instructions issued by the seller would be seen as reasonable.

And failing to restore the goods to the supplier for a refund is taking reasonable care is it? The fact op posted them is irrelevant, especially considering DSRs specifically use the word "receive"