Distance Selling - Cancelling before item received.,

unholyangel

mo786uk wrote: »

Well Reg 17 quite clearly says Reg 17 ONLY applies when the customer has acquired possession - so yes I think it is irrelevant when the customer has not acquired possession.

The way the DSR is written is quite clearly mean to work as one oiled machine but IMO they have not made a crystal clear outcome for the scenario the OP is in but as I have mentioned if you interpret words in certain ways you can come to the conclusion that the goods have not been delivered so all those issues about 'return' are probably not relevant.

Yes so if he cancels before he has possession, he is under no duty to restore the goods - meaning he isnt liable for the costs as it isnt his responsibility.

unholyangel

In fact, OFT say it too...

Can a consumer cancel an order before they receive the
goods or where goods are lost in transit?
3.35 Yes. Where the DSRs give consumers rights to cancel, this right is
unconditional. If consumers cancel before they have received the
goods you must refund the total price of the goods, including any
delivery charges. Consumers who have cancelled under the DSRs
may refuse to accept delivery of the goods. Refusal in such a
situation cannot be treated as a breach of contract.

They dont say you can deduct an amount for the charge of returning it.....And the provision you quoted earlier said if a term of the contract stipulates the consumer needs to return it and they fail to do so (ie breach the terms of the contract). OFT are saying here it cannot be treated as a breach.

mo786uk

I posted that part in a context that supported exactly what you have said - the goods have not been SUPPLIED so the whole issue of duty of goods under regulation 17 is irrelevant anyway.

bod1467

To me you are arguing the same thing in slightly different ways; ergo you are arguing about agreeing.

Jamie_Carter

mo786uk wrote: »

I take your point and don't necessarily disagree but you have to look at Regulation 14

14.—(1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5).

(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.

I don't think the bit about the contract never existing is that relevant as it has the same effect after the goods have been delivered yet you still have to pay for return delivery.

I spose the argument is, have the goods been supplied?

If the buyer contacts the seller by durable means to cancel the order before delivery, then the contract is cancelled, and there is no return postage to pay.

The seller could try to still deliver the goods, and then argue that the contract is still valid, because they accepted delivery. But all the buyer has to do is refuse delivery, and tell the driver that the contract has already been cancelled. But the buyer must refuse to sign any paperwork held by the driver.

Jamie_Carter

unholyangel wrote: »

In fact, OFT say it too...



They dont say you can deduct an amount for the charge of returning it.....And the provision you quoted earlier said if a term of the contract stipulates the consumer needs to return it and they fail to do so (ie breach the terms of the contract). OFT are saying here it cannot be treated as a breach.

Just to add. If the customer doesn't have posession, then they can't return it.

Edit: Sorry I hadn't read your post above.

bris

Makes no difference what the arguments are the DSR contradicts itself and they are allowed to charge return costs.

I can't see anything in any of the quotes that explicitly denies the seller the right to charge the return fee..

Jamie_Carter

bris wrote: »

Makes no difference what the arguments are the DSR contradicts itself and they are allowed to charge return costs.

I can't see anything in any of the quotes that explicitly denies the seller the right to charge the return fee..

There is nothing in DSR's that allows them to charge a return fee. Because a buyer can't return the goods if they have cancelled the contract, and they don't have them in their posession.

unholyangel

bris wrote: »

Makes no difference what the arguments are the DSR contradicts itself and they are allowed to charge return costs.

I can't see anything in any of the quotes that explicitly denies the seller the right to charge the return fee..

Even ignoring everything else.....such a term would be unfair as it requires the consumer to pay for their return regardless whether they're faulty or not and as we all know, any term that restricts or tries to remove your statutory rights is a big no no.

lordgaz

Thank you for all the input!

As an update - the vendor did not seem to have cancelled the delivery with the courier, but I managed to contact the courier and cancel (if they were being honest with me) - The courier advised they would not attempt delivery.

I have written again to the vendor outlining politely the situation, and advising my rights(?) again to cancel before a delivery and receive a full refund.. The vendor has gone quiet, but there is no reason for them to enter conversation until they receive the goods back from the courier..

We shall see!