Retailer refusing to refund under DSR

arcon5

Fire_Fox wrote: »

Ignore the unprofessional and immature behaviour, only respond to messages and comments relevant to the PayPal case. Posturing makes you look equally silly.

Seconded. Don't lower yourself op. Keep your emails factual and objective.

pulliptears

I'd give Paypal a call tomorrow, ask them to review the messages entered into the dispute. Can't hurt

unholyangel

stoneman wrote: »

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.

Uh oh. Could pose a problem? From DSRs interpretation:

“distance contract” means any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded;

If OP has went into shop to have measurements, the contract has not been concluded exclusively by distance means.

OP, you may want a read of MSE's Making Time of the Essence article.

shaun_from_Africa

If OP has went into shop to have measurements, the contract has not been concluded exclusively by distance means.

But if the OP ordered and paid online before going into the shop then it could well be argued that the contract was concluded at the point they paid.
This is how the OFT define contract conclusion:

A contract is concluded when the consumer becomes bound to buy something and the business becomes bound to supply it. The conclusion of a contract is determined by the facts in each case. It is in your interest to make clear to
your consumers exactly when a binding agreement will be reached. For example, you need to explain if the contract becomes binding when the customer places the order or only when you confirm that you have accepted their offer to buy.

http://www.oft.gov.uk/business-advice/treating-customers-fairly/dshome/glossary/


Even if the DSR's don't apply then the OP still has the SOGA to fall back on.
Section 27 states that:

It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

and as the receipt states a delivery time of 21 days and it will now be at least 45 days before the goods are ready, I would say that a breech of contract has occurred so the OP is entitled to a full refund.

Techhead_2

stoneman wrote: »

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

Your emails are not written well, they are likely to be unproductive. You need to be less argumentative and accusatory. You need to be clear with dates and the sequence of events. You need to consider the response before relying to it.

One example: the retailer says that they didn't receive your email. You have taken this to be an accusation that you are lying and respond with aggression.

I've said this before - there needs to be a MSE updated guide to complaining.

Now I'm not saying the retailer has or hasn't done anything wrong and I'm not saying you don't have a case - merely that you have needlessly complicated the situation. How to get out of this? I would write (don't phone or email) in very concise unemotional terms to the retailer.

Funky_Bold_Ribena

If nobody works Saturdays, how come he was working on Saturday?

As mentioned - keep it polite and factual and stick to the case in hand, that you haven't had your delivery, quote the specified issue and don't get personal.

wealdroam

Funky_Bold_Ribena wrote: »

If nobody works Saturdays, how come he was working on Saturday?

The retailer said "nobody works just Saturdays".

stoneman

Thank you all for the advice, I guess I did get drawn into the situation after my first request to have the order canceled was declined.
The contract was wholly completed online, I did phone them up when I received the receipt saying to allow 21 days for delivery to make sure that it would be done for my holiday. I mentioned that I lived local and the guy advised that I come down to try on a stock jacket (was advised that the measure slim) in case the one I ordered wasn't loose enough and this would eliminate it having to be redone if there was a problem.

stoneman

Quite an interesting converation with Paypal.They have advised me that if the jacket comes within the next 10 days, which is the timescale they have givin the retailer to supply tracking information, I must not refuse to accept it or Paypal will interpert that as "buyer remorse", close the case and not refund me. They don't seem to realise that I am claiming under the DSR. Here is what I wrote in the resolution centre:

Under the distance selling regulations section
Performance
19.—(1) Unless the parties agree otherwise, the supplier shall perform the contract within a MAXIMUM of 30 days beginning with the day after the day the consumer sent his order to the supplier. Modclothin have failed to do this, I was givin a lead time of "around" 21 days for completion. I would have accepted up to 30, but the best estimate of the retailer as to when I can expect delivery is 40-45 days.

I am getting worried about this now, do I accept the jacket if he sends it, or send it back, let ebay close the case and then go to the small claims court?

cockaleekee

I have found that ebay and Paypal are not too hot on consumer law, they tend to apply their own interpretation of it.

On the information given, and having looked at their website, I believe you would be successful at small claims. As explained you have two arguments, under the DSRs and also the fact that they are in breach of contract in terms of the lead time (and the time stated on their website).