Retailer refusing to refund under DSR

bris

bod1467 wrote: »

So TWO valid clauses for cancelling then?

No not really.
For the main one being whether or not this falls under DSR or not. My opinion being it doesn't, this jacket is clearly made for you not just an optional extra. A car getting alloys or a computer getting a certain graphics card can be reversed if the item is sent back, putting the retailer back in the same position as before the sale. In your case the retailer would be stuck with the jacket, so proper bespoke I believe it to be.

The second is the time scale, unless a specified date formed part of the contract then time scale on a bespoke item would be subjective with any dates being estimated unless guaranteed otherwise.

I can see you having to take the retailer to court to get a proper ruling on this one.

shaun_from_Africa

The second is the time scale, unless a specified date formed part of the contract then time scale on a bespoke item would be subjective

But under UK legislation, a timescale does form part of the contract in question:

the supplier shall perform the contract within a maximum of 30 days

and this 30 day period applies unless the contract states otherwise and both parties have agreed to a time beyond this 30 day period.

As the OP doesn't appear to have agreed to a later delivery date then there has been a breech of contract terms.

bod1467

Computer item - select from options on website

Clothing item - select from options on website

What's the difference? Can you point out in DSR guidance notes (or other formal guidance) where these differ?

Fire_Fox

Raise a dispute/ open a case with PayPal based on non delivery of item within the specified 21 days, you only have six weeks to do this IIRC so don't wait. If the package arrives DO NOT sign for it or accept it and make sure nobody in your household or neighbours accepts it, if the item is not received they cannot charge you for it but if anyone accepts it you are stuffed because the jacket is custom.

arcon5

bris wrote: »

.

I can see you having to take the retailer to court to get a proper ruling on this one.

Not really, the laws very specific with regards to the time scale.

stoneman

I have raised a claim with Paypal based on the section 19 contract not completed within 30 days, as this seems to be the one that is airtight as apposed to the bespoke argument.
Below is the transcript of what went on.
Me:
Hi,
I would like to cancel the order I made on the 14th of Jan. please. After twice trying to get an answer as to how long the jacket might be before delivery (email on the 14th, unanswered, phone call on the 16th. assistant not able to give me an answer) I then finally got through to someone on the 19th that could give me an answer and was informed that the jacket would be with me "towards the end of next week". I'm sorry but this is too long as I will already be on holiday by then. I was given a estimated time of 21 days and confirmed with the shop that it would be no longer than a week later, this would have been fine, but now fnding that it could be 45 days is unacceptable. Please refund the money to my Paypal account within the next 7 days
Kind Regards
stoneman

Retailer:
These jackets are hand made and we do have other customer's before you.
21 days is just a guide line,the jacket will be with us next week I'm sorry to say there will be no refund. We do state this on the website as all our semi bespoke suiting plus you came down to the shop and had extra measurement.
We've had no emails only phone calls from you which was the other day when you had spoken to Christian. Sorry your unhappy with our service but when you get the jacket you will see its well worth the wait and the price.
Pete modclothin

Me:
Hi Pete,
So you are saying that I am lying about phoning on Saturday and not sending an email? Find attached a screenshot of the email I sent. Under the distance selling regulations a customer has the right to cancel an order at anytime before delivery , as well as 7 days after delivery for any reason they like, and lets be fair the jacket isn't even made yet. You stick to your guns if you like, I will just put in a dispute with Paypal. Funny that, emails and phone calls go unanswered but the minute I want to cancel an order you are on to me straight away.
Kind Regards

Retailer:
The reason your getting an answer is because this is the first email you have sent regarding this query. I work late regularly and haven't received any other emails from you.
I was working last Saturday and I didn't take any phone calls from yourself.
I have worked in retail for well over 20 years so don't quote the distance selling law to me.
This law does not apply to special orders or goods that are made to your special requirements.
Put your claim in with paypal if you wish and you'll find when we explain to paypal that your order was made to your specification (which can take up to a month before the problem is resolved) so the option is you'll get the jacket next week or you'll be waiting longer.
Obviously you have never had a jacket made to your specification and if you did you would know it's not made that quickly and like I said your not the only customer so there's no jumping the queue.

Me:
Hi Peter,
So I some how concocted a fake email that I sent to you. Again accusing me of telling untruths. BTW the email addy you have registered with Paypal bounces back as not known, I tried that one first. On Saturday the person I spoke to said they only work Saturdays and there was no one else there to take my query. Phone log attached, but you will probably think I photoshopped that as well. For your information I have had shirts and jackets made to measure plenty of times, but by professionals that keep me informed, so don' t be insulting. For someone who has been in retail for 20 years you would have thought you would have learnt a bit about customer service. Not one of your emails has started by addressing me or finished with a regards. 21 day lead time as an estimate is fine, 45 days to finish is not, I wanted the jacket for my holiday this coming week, and thought that by ordering in mid January that would be sufficient as well as coming into the shop to discuss it and being assured that it would be done in plenty of time. Obviously you don't wish to resolve the situation so we are done
Kind Regards

Retailer:
Address your name and anything else I don't thing you deserve it with your attitude.
The emails you sent to the other email address would have bounced back to you as you already know this.
Nobody works just Saturdays in our shop.
The jacket will be sent to you next week and this will be the last I see or hear from you again


So you can see why I would not now want to do business with this company anyway.
I now realise that the statement about the DSR might not be accurate

tomwakefield

bris wrote: »

No not really.
For the main one being whether or not this falls under DSR or not. My opinion being it doesn't, this jacket is clearly made for you not just an optional extra. A car getting alloys or a computer getting a certain graphics card can be reversed if the item is sent back, putting the retailer back in the same position as before the sale. In your case the retailer would be stuck with the jacket, so proper bespoke I believe it to be.

The seller being able to resell it is irrelevant, as is the ability to dismantle the item into its component parts.

The key to selecting preset options is to allow a wide range of similar items without having to store them all. It is, in effect, no different to a large warehouse storing all possible combinations, except a lot more practical. Each individual combination should therefore be considered standard stock. Bespoke would be the OP taking in a roll of their own material into a shop and requesting a jacket made from that. Or phoning up and saying "I need a 40L jacket, are you able to make this?"

artbaron

Jesus wept, what possessed you to order from that site? I know that's not helping you but even so...

amcg100

Fire_Fox wrote: »

Raise a dispute/ open a case with PayPal based on non delivery of item within the specified 21 days, you only have six weeks to do this IIRC so don't wait. If the package arrives DO NOT sign for it or accept it and make sure nobody in your household or neighbours accepts it, if the item is not received they cannot charge you for it but if anyone accepts it you are stuffed because the jacket is custom.

This seems like good advice, seems like you have happened on a dodgy seller and your recourse is best explored via pay pal. I would also suggest a crisp e - mail or letter to advise the seller that the order is cancelled, and obviously keep copies and proof of posting.

stoneman

artbaron wrote: »

Jesus wept, what possessed you to order from that site? I know that's not helping you but even so...

Well we actually use a photographic studio on the same floor as this company, but we thought they were only web based and the place they use as their "showroom" was a storage facility which is why I ordered on line, as it happens it was probably the best way to order as I seem to have more protection (Paypal) buying online than in store. The owner of the studio recommended them to me when I said I was looking for some retro clothing.
I fear for the retailer because Paypal almost always side with the buyer, as I have found out on a few occasions:o