Distance Selling: Consumer does not have to post back

malchish

This is the legislation that retailers hate us to know: if you bought something online and it has been delivered to your home, and then you wish to cancel the contract under DSR (within 7 days after delivery, and in some cases 3 months), then you inform the seller in writing.
Now this is the important bit: You have no obligation to actually post the item back (this is particularly important when an item is heavy).
After you inform the seller in writing , they have 30 days to make a full refund, whether you returned the item already or not. It is up to the seller to organise collection (they have the right to reasonably charge you for such a service). If they fail to collect, despite you reasonably making the item available for their collection, then after 21 days your duty of care for the item expires and you can dispose of the item as you wish. You are still entitled to the refund.
You must not unreasonably prevent collection, because in that case your duty of care may be extended indefinitely...
Online sellers never put into their terms and conditions this info, because many of them want to wriggle out of having to collect if they want their item back.
They must not deduct the cost of collecting from your refund. To comply with DSR, they have to refund within 30 days. They can sue you for the collection cost if you do not pay it - it means that they have to only charge reasonable money for collecting (otherwise a judge will not support their claims).

This is the relevant part of the DSR:

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. :rotfl::beer:

(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.

mo786uk

In rpactice no shop wil lrefund until the item is handed back and I very much doubt a regulatory body would be too concerned about forcing them to do so.

I believe udner new ruels that rae coming in a few years the DSR will change to say the customer has to send the item back in 14 days and the retailer has to refund within 14 days.

lil.smartie

If T&C's state customers pay returns then they must... or if collected then cost is deducted from refund!

Kate

malchish

In practice, the shop could try to refuse refunding until the goods are received back - in practice on day 31 you then send them a letter before action - that you can issue a moneyclaimonline (online claim to a small claims court). You will see how swiftly they will refund.

Yes, the consumer has to pay the reasonable cost of collection, I never said they should not. But the refund should arrive in 30 days, even if the company can only collect later, and agreed the date with the consumer. Refund under DSR is separate from return issue.

Well, the law could change.... you know, all consumer rights could vanish.... very informative opinion ??? NOW the law stands as was described.:T

Dr_Cuckoo3

I agree with the OP and remember reading his post on another thread


In practice though , we know that Trading Standards / Consumer Direct are poor quality

Court action will be necessary

I would be interested to see a mock letter before action and particulars of claim for this scenario

I have taken legal action as a litigant in person several times in the past and all the organisations have instructed solicitors

A solicitor should be able to beat a lay person , so the only reason for settling would be that the solicitors cost outweighs the value of the claim

What size mail order businesses use solicitors ?

I suspect that Argos and Tesco would

Smaller mail order businesses may represent themselves

I suspect that counterclaim would be automatic

Does the OP have any experience ?

malchish

In my experience,
the company will never instruct a solicitor over a small claims issue. They will also never go to court when they are in breach of legislation. Their own solicitors won't advise them to ashame themselves. Their solicitors will only advise them how to intimidate/negotiate/threaten/satisfy you.
But they can pretend that they would involve lawyers,and they can write to you claiming that they have instructed solicitors.
I would not be afraid to go into small claims court, when I am in the right.

What the company COULD do, is tweak terms and conditions of your contract. Make sure you get a screen shot of everything before you complain.
In my experience, the lawyers for one big retailer dishonestly have changed the contract after my complaint, making things look as if what happened was not a breach of contract, but an option of the contract. I had to accept a low settlement (still £350! not that bad).
A letter before action against Virgin worked wonders. We received money in 5 days, after 6 months of complaining... I know this is not dSR... but, either way, Virgin is not a virgin in legal matters also.

mo786uk

If a shop doesnt send the item back you sue them for breach onf contract and clai mdamages. You are unlikely to get much in the way of damages so its pointles.s

A court is likely to sympathise with the buisness (depending o ncirucmstances) so whilst they may be forced to find against them they can limit the punishment as they see fit.

malchish

mo786uk wrote: »

If a shop doesnt send the item back you sue them for breach onf contract and clai mdamages. You are unlikely to get much in the way of damages so its pointles.s

A court is likely to sympathise with the buisness (depending o ncirucmstances) so whilst they may be forced to find against them they can limit the punishment as they see fit.

I do not understand what you mean...
You do not claim damages. You claim the cost of the item plus initial delivery only. They won't be able to do anything.
No, the court is not at all likely to sympathise with a business that breaches DSR.
And the court won't be "forced to find against them" - the court will gladly do so. However, most likely the hearing will never happen. The company will settle before then.
Wishful thinking me thinks,

pickpocketlocket

malchish wrote: »

In my experience,

What exactly is your experience? I have seen a good number of cases where the retailer has defended a claim, some successful and some not. I would also be weary of making a claim on the grounds you describe here given the imminent revisions - I would not be surprised if a claim was stayed until the amendments were made. This would not amount to applying the law retrospectively, as the amendments are simply clarification of the original intent behind the DSRs.

malchish

pickpocketlocket wrote: »

What exactly is your experience? This would not amount to applying the law retrospectively, as the amendments are simply clarification of the original intent behind the DSRs.

Well, what is YOUR experience?
And I am talking of the current law, not any future hopes and dreams of companies who do not like DSR.
If the law gets revised, my experience will change.
I posted the excerpt from the current regulations that are in force, to let people know their CURRENT rights.

malchish

in practice, it is very rare for any issue to reach a court hearing.
I never needed one, actually, over a consumer issue. I would get what i would be satisfied with, before a court case.