S75 refund refused

meer53

Dabooka wrote: »

Surely the company provided the goods / services paid for? Although the suitability is questioned by the OP, I don't see how this is S75, maybe Distance Selling Regs at best, but even then the goods need to be returned in an "as new" condition.

I suspect the OP has misunderstood the CC saying they're entitled to a refund under DSR not S75, and even then maybe it wasn't pointed out they'd used it for 10 miles!

I think agreeing to replace the tyres and a refund for the balance is as good as you can hope for. Ultimately you needed to check frame size suitability prior to going out on it.

I'll prepare for a flaming now

I read it as 10 metres ?

dazza.mk

!!!!!! wrote: »

they have ordered AS THEY WOULD IN A SHOP.

This does not include, in this instance, taking the bike for a ride so I tend to agree with the retailer that the goods are deemed to have been accepted as they have been used and are not faulty

.............Although a quick search online reveals that it is common practice for a large number of bike shops to allow test rides?

Buzby

If the bike firm went bust, or the bike was faulty I afree S75 is the way to go. However, this is a DSR issue and you should not be sidetracked with s75.

I cannot fathom how the seller knew the tyres were 'dirty' if he hadn't 'accepted' the delivery? Of the deliveries I've seen, the wheels are exposed with only the pedals being contained within the packing material. In this case the carrier returning it may have contributed to them being dirty, but without knowing how it was packed this is a moot point.

Sure, the retailer may simply being trying it on, but if they refuse to refund and continue to do so, do you still have the bike, or do they? The DSR claim to the CC co is the best route, as c75 will simply lead to a cul de sac.

Heath_and_Heather

Dear all

Thank you everyone for all you advise, I am truly amazed at both the number of responses and the depth of knowledge many users of this forum clearly have and advise is grateful received.

With respect to my case, when I said I cycled 10m to test out the bike, I meant 10 metres not 10 miles! This is essentially why I feel so aggrieved against the retailer, they have just decided that if they ignore me I will go away, any dirt on the wheels is really very minor as would been have picked up from 10 metres of cycling. In all honesty the bike was returned in the same state it arrived and was suitable for re sale.

Having researched the Distance Selling Regulations in depth, I believe I have a strong case for a refund, it’s just how to go about getting it! I have a feeling it’s going to take a long time to resolve, I think both retailer and credit card company think I will just give up but I’ve gone too far to give up now.

So I guess my next step is pressing the credit card company more and complaining with their internal complaints procedure before getting the FSA involved. Am a bit confused with post no 24 afraid
“The DSR claim to the CC co is the best route, as c75 will simply lead to a cul de sac.”
A DSR claim to the CC co has resulted in them telling me to take the retailer to a small claims court which I want to avoid.

[Deleted User]

If I was the OP, I'd be naming and shaming the bike shop by this point. I've worked in the cycle trade in the past and absolutely no bike shop worth it's salt would expect a customer to buy a bike without the chance to ride it on the road - wether bought online or otherwise.

We would routinely allow, even advise, customers to test ride road bikes costing up to £3-5k (after seeing photo ID and taking a £1 charge from their credit card, of course!)

Not that it should matter but did you go with the shops recommendation on the size?

derps

thenudeone wrote: »

The Distance Selling Regulations are law and are an implied term of every relevant consumer contract automatically, just like the Sale of Goods Act.

A retailer cannot opt out of them.
The card issuer is jointly liable and is trying to use fancy words to attempt to accepting that.

Do you have legal cover with your home insurance? If so, get them involved. A call or letter to the retailer and / or the card company might resolve the issue.

However, by taking the bike outside for a ride you have made the situation more complicated, because by using the bike, it can be argued that you have accepted the goods.

I don't think the regulations wee meant to give consumers the right to try something out, then return it in a condition which can no longer be sold as "new", and still expect a full refund from the supplier.

This is not my understanding of the law.

The Sale of Goods Act 1979 says things like "Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality" (s.14(2)).

This section operates to imply a term into a contract, so a contract between a consumer and a retailer will include a condition that the goods will be satisfactory. If a retailer breaches this condition the consumer will have a cause of action in civil law against them for 'breach of contract'. If this cause of action is present, joint liability for it can be claimed from credit card issuers (in certain circumstances) under Section 75(1) of the Consumer Credit Act 1974.

The Consumer Protection (Distance Selling) Regulations 2000 do not imply terms into contracts. I cannot see anywhere in the Regulations where it says that contracts made will be changed to include the cancellation rights referred to within them.

If a retailer does not comply with the Regulations, the Office of Fair Trading or local authorities (Trading Standards) have powers to apply for injunctions to enforce the Regulations against a non-compliant merchant. (s.27(1)). A court can then force a merchant to comply with the Regulations.

This does not mean a non-compliant retailer has breached the terms of any contract. Breaching the Regulations means the merchant will come under pressure to reform and for this reason, most merchants choose to include the requirements of the Regulations in their contracts to avoid scrutiny by their regulators. If retailers have done this, only then will failure to honour 'cooling-off' periods amount to a breach of contract.

OP, you will need to refer to the terms and conditions of the contract you made with the merchant. A reputable merchant should already have incorporated the Regulations into its standard contracts. If this is the case, present these to your card issuer and advise them the merchant has breached the terms of the contract.

If the retailer has not included these cancellation rights in the contract, you should report them to your local authority's trading standards office but legally you are not able to pursue the card issuer.

Heath_and_Heather

Another route I was considering to get my was to go to trading standards but not sure how easy this is to progress. Does anyone have any experience of dealing with trading standards? I have spoken to the Citizens Advise Bureau who though initially were helpful, on the last call the lady I spoke to did not understand the Distance Selling Regulations as much as I expected.

I want to try and resolve this in a speedy way if possible as things are starting to drag a bit...

Heath_and_Heather

Thanks for reply derps, in my case the retailers return policies themselves (and hence the term of contract of the sale) are non-compliant with the Distance Selling Regulations, and the credit card company agrees with me on this. So I guess I must press Trading Standards to help me here.

redpete

oscar52 wrote: »

The OP hasnt stated they ordered the wrong size, they said it did not fit them. It is equally possible that the company delivered the wrong size.

The OP also doesnt suggest they have been oout and about on the bike, so why should they buy new tyres for it.

I'm sure if the frame size was different from that ordered they would have said so, as they would if the retailer had claimed that the tyres were dirty despite the OP not having ridden the bike outside.

redpete

!!!!!! wrote: »

I think the crux here is that DSRs allow the buyer to examine the goods they have ordered AS THEY WOULD IN A SHOP.

This does not include, in this instance, taking the bike for a ride so I tend to agree with the retailer that the goods are deemed to have been accepted as they have been used and are not faulty

I wouldn't buy a bike from a shop that didn't allow me a short test ride outside.