S75 refund refused

Voyager2002

Heath_and_Heather wrote: »

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...

All that Trading Standards will do is advise you how to proceed, and I think you have already been given good advice.

dazza.mk

Heath_and_Heather wrote: »

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.[/FONT][/COLOR]

Your options if negotiation with the retailer have failed are:

1) Make a Formal Complaint (via the credit cards complaint process don't just ring customer services) Stating that they are not meeting their liabilities given you are holding them jointly liable to your rights under the distance selling regulations in relation to the purchase (which they have already agreed are valid)

1b) After they issue a deadlock letter or eight weeks later complain to FInancial Ombudsman

2) Take Retailer and/or Credit Card company to small claims to failure to honour Distance Selling Regs/ Section 75+Distance Selling Regs.

Trading Standards will only point you in the direction of Consumer Direct who will confirm your rights under legislation.

chattychappy

derps wrote: »

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.

This is a really interesting point. I think I disagree with your conclusion.

Agreed, some statutes (eg SOGA) expressly imply terms into contracts. No doubt there that a CC is on the S75 hook for a breach of those terms.

Agreed also, that if the merchant complies with the regs (advises of cancellation rights at the time of contract etc) then effectively those rights are built into the contract as express terms - again CC on the S75 hook.

But what if there is no mention of the DSRs by the merchant? We know they still apply. If refusing a refund after cancellation, the buyer would still have a cause of action against the seller and would this not be in contract? IMHO compliance with the regs is therefore a term implied by law.

You write:

derps wrote: »

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.

True, but I don't think that prevents them from becoming implied terms. Afterall, some terms have become implied into contracts without any assistance from statute at all.

Wikipedia considers the DSRs as implied terms, see under "statutory" in http://en.wikipedia.org/wiki/Terms_in_English_contract_law, though I know that that's not authoritative.

bod1467

As I understand it, DSRs convey statutory rights thus cannot be contracted out (except for B2B contracts). If this is what you're meaning by implied terms then I agree.

arcon5

To those who have sided with the retailer, I completely understand the reasons behind it... But surely you cannot justify the retailer keeping 100% off the money? They should either be deducting the cost to repair/clean or returning the bike to op... Anything more is simply a penalty, just them seeking to make huge gains from the situation.