Can't get refund on faulty goods

Ip123

Here is another email from Scotts Toy Box (Play.com):

Hi Tracy,

I am sorry, but I am not sure that you do understand - I think you are getting confused between the Parcel (being the big brown box that the LEGO set and paperwork was sent in) and the actual LEGO set (being the box with the LEGO logo on that contains the actual LEGO bricks).

The idea behind the EU Distance Selling Regulations is to enable a customer to examine the goods, as they would in a shop, but from the comfort of their own home.

For example. If someone thought that they might want to buy a LEGO set, they might walk into their local toy shop, find the LEGO section, pick up a box and look at the picture on the box, look at the age range, turn the box over and look at the picture on the back of the box. They might then put that set down and look at several other boxes before they made the decision as to which one to buy. What they wouldn't do is open the LEGO set and look at the actual bricks as this would mean that the set isn't brand new, and in a re-saleable condition.

The same thing happens when people make an online purchase. The goods are ordered by the customer, dispatched by us and then received by the customer. The customer then opens the parcel, takes the LEGO set out of the brown box, removes the bubble-wrap and is able to look at the picture on the box, look at the age range, turn the box over and look at the picture on the back of the box, just as they would have done in a shop.

At this point, if they decide that they no longer require the item, then providing they notify us within the seven days and pay for the return of the item, they receive a full refund from us. Again, the same applies as it would if the person were in a shop, they wouldn't open the LEGO set and look at the actual bricks as this would mean that the set isn't brand new, and in a re-saleable condition.

However, this does not apply in your case as you accepted the set, opened the LEGO set and began building it. At this point you are not able to cancel the contract and return unwanted items.

This then takes us to the issue of Damaged or Faulty Products.

I have had a good look at the building instructions and parts for this model and concluded that it would not have been possible to build the model if parts were broken. Therefore the parts were broken after receipt and were not damaged/faulty when delivered.

If the parts were broken when they were delivered to you, then under The Sale of Goods Act, I would have a duty to repair, replace or refund.

The Sale of Goods Act requires that goods be accurately described, of satisfactory quality and fit for any purpose specified. Or in other words, they must 'conform to the contract of the sale'. If this is not the case then your statutory rights have been breached and you have the right for the item to be repaired, replaced or refunded.

There are, however, circumstances when customers do not have a legal right to a repair, replacement or refund. These are where the customer accidentally damages an item or misused it and caused a fault.

From your original email, we know that the garage door was working and then for some reason it became stuck. It could be argued that at that time the item was accidentally damaged or misused and then you would not have a right to a repair, replacement or refund.

However, in my communication with you, I have not argued that your statutory rights were not breached.

As a responsible retailer, I am saying to you, regardless of how the damage occurred, that if you give me a list of the damaged parts I will arrange for replacements to be issued. Or, if you prefer and as it may be easier for you, the replacements can be requested by you from the LEGO website, following the link in one of my earlier emails. Although there shouldn't be any charge for this service, if there were, I would re-imburse you for the cost involved.

If you would like me to arrange the replacement parts, please send me a list of the parts - Thank you.

Kind Regards

Scott
_____________________________________________________________

I have been sending lots of email to seller asking about the return and refund, they insists they will find the parts for me from Lego, they refused us to return, I also noticed you can't buy another set from Play.com any more, just wonder is this the reason why they refused me to return because mine one is the last set on earth (I meant I am unable to find another set at all on-line), can I use Section 75 to ask my credit card company for help?
Please advise.

somethingcorporate

Their understanding of the DSRs are flawed - there is nothing in there that suggests they have to be in a condition that means they can be resold. It would also be down to the retailer to prove that the damaged was caused by you or your son, given the product is less than 6 months old.

Although I agree with unholyangel that by building the product you have acted in a way that demonstrates acceptance.

Given the above I think they are being fair in offering replacement parts and any associated costs for the damaged bits, I think by pushing this you will be onto a loser I am afraid.

wealdroam

I think Scotts Toy Box offer is very good.

You should accept it.

If your son still doesn't want it, at least you will be able to sell it on as complete.

As Somethingcorporate says... if you try and force something else from the retailer he may well decide not to help you at all.

unholyangel

Agree pretty much 100% with what is above. Their understanding of the DSRs is flawed. The DSRs do not link the retailers ability to resell an item to the consumers right to cancel. It is an unconditional right to cancel and receive a full refund. Although yes the purpose of the DSRs is to allow you to examine the goods as you would in a shop, the actual regulations themselves make no mention of this afaik and it is only mentioned in OFT's guide to them for businesses. They should also refund you within 30 days of receiving your request regardless of circumstances and if they feel you have breached your duty of care, then claim against you for it separately.

That is in theory. In practice.....it rarely (if ever) happens and I'm sure I read somewhere that the DSRs are being rewritten to make it fairer for retailers.

Labmanager

[QUOTE=unholyangel;51798185](1)The buyer is deemed to have accepted the goods [F1subject to subsection (2) below—
(a)when he intimates to the seller that he has accepted them, or
(b)when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.



Would you say them building it is consistent with the goods still belonging to the seller? Perhaps if you disagree with what I put above you can say why and what legislation you feel reinforces your view?

I am by no means saying my advice is flawless, but I do know both the acts well and imo, OP's actions are inconsistent with the seller being the owner.[/QUOTE]

Where is subsection 2?

Both Acts?

Lego by it's nature I would suggest requires to be built to ascertain if it conforms to the contract. ie 'reasonable opportunity'. It would be difficult to just 'look' at hundreds of lego parts to ascertain this.

unholyangel

Labmanager wrote: »

Where is subsection 2?

Both Acts?

Lego by it's nature I would suggest requires to be built to ascertain if it conforms to the contract. ie 'reasonable opportunity'. It would be difficult to just 'look' at hundreds of lego parts to ascertain this.

Both acts = SoGA and DSRs.

I guess thats where we differ in opinion! I agree opening the product doesn't = acceptance but imo building it does. To me that signifies that they consider the product as theirs (ie they've accepted it).

Perhaps OP could ask the retailer if they will be willing to swap it for other products to the same value?

Perhaps that is a compromise that would be more suitable for the OP and the retailer may agree to it as they won't be losing a sale. Always worth asking politely! The retailer (to me anyway) comes across as someone who is trying to resolve the situation in a reasonable way.

arcon5

Technically you can return it under DSRs and they would have to pursue you separately for your breach of duty of care. However, in reality it doesn't work like that!

They have dealt with it professionally and offered a satisfactory resolution, so take it.

Personally if I was in their situation I wouldn't accept the return - in fact push me too far and you'll get nothing. I also think you're taking the p*ss a little bit

Labmanager

unholyangel wrote: »

Both acts = SoGA and DSRs.

I guess thats where we differ in opinion! I agree opening the product doesn't = acceptance but imo building it does. To me that signifies that they consider the product as theirs (ie they've accepted it).

Perhaps OP could ask the retailer if they will be willing to swap it for other products to the same value?

Perhaps that is a compromise that would be more suitable for the OP and the retailer may agree to it as they won't be losing a sale. Always worth asking politely! The retailer (to me anyway) comes across as someone who is trying to resolve the situation in a reasonable way.

If I paid £130 for a lego set and in the course of partially buiilding it for the first time found damaged/faulty parts I'd argue I hadn't accepted it as part of 'reasonable opportunity to examine'? If an item requires to be assembled to ascertain whether it conforms to contract surely you are allowed to do so without prejudice?

arcon5

Labmanager wrote: »

If I paid £130 for a lego set and in the course of partially buiilding it for the first time found damaged/faulty parts I'd argue I hadn't accepted it as part of 'reasonable opportunity to examine'? If an item requires to be assembled to ascertain whether it conforms to contract surely you are allowed to do so without prejudice?

It's a Lego set - it doesn't take building it to inspect the goods for damage

Labmanager

arcon5 wrote: »

It's a Lego set - it doesn't take building it to inspect the goods for damage

Really???So if A doesn't fit B? So a lego set with maybe 200-300 pieces doesn't require 'reasonable opportunity' to examine? Do you suggest open it, it looks fine, therefore I accept?