Refund Nightmare - Section 75 Questions

wildg

Hi All

I purchased an item for just over £250 (telephone order) around 20th May. I cancelled the order the following day before they had sent out the goods. The company has since failed to refund the money, therefore falling foul of the Distance Selling Regulations which stipulate no more than 30 days for a refund.

My credit card issuing bank tells me that as I cancelled the order before I received the goods that they cannot process a refund under Section 75 Consumer Credit Act. Is this true? I would have thought that as I made the purchase on the card they are jointly liable regardless of whether or not I received the goods or cancelled the order.

The company I ordered the goods from are/were legit as I have used them in the past, but their phone number doesn't seem to be working anymore and they are not responding to emails. If I can't do Section 75, what can I do to get the money back?

Many thanks
wildg

dalesrider

They are correct.
You broke any contract by cancelling the order/contract.

Who is the company?

wildg

<expletive deleted> that's a shame. I am confused though. I would have thought that a contract, or at least a portion of it, would remain in place until such time as a refund is provided. Or is the 'contract' in that situation just the Distance Selling Regs?

The company is vitality4life dot co dot uk

I have not tried calling them over the past week as I've been concentrating on chasing Section 75. I'll have to try to re-engage with them tomorrow. Any advice on how to approach?

grumbler

dalesrider wrote: »

They are correct.
You broke any contract by cancelling the order/contract.

Really? Nowhere do the DSR say that the goods have to be delivered before cancelling.
The OP has 100% right for the refund. If the company fails to refund the money this is a clear case for chargeback or s75 claim.

The only possible problem I can see if it's not a UK company and DSR don't apply.

chattychappy

S75 means joint/several liability for breach of contract.

DSRs imply certain cancellation rights into contract. CC on the hook if there is a breach of contract - including breach of implied terms.

I would argue S75, but reserve the right to change my mind having ruminated on it for a while.

(I remember looking at this a year or so back. DSRs don't directly imply rights into contracts in the same way as SOGA etc, but I concluded the effect is the same in the case of s75. Can't remember the detail now.)

roonaldo

this isnt a section 75 issue though

eddddy

Hi wildg

Contrary to what some others are saying, it seems that the UK Cards Association are saying that s75 is appropriate in your circumstances.

Here's a quote from their leaflet "Credit cards. Your rights - a consumer guide"

Internet and mail-order shopping within the European Union
(EU)
If you buy something online, by phone or by mail order from anywhere in the EU, you get extra legal protection as part of the Distance Selling Regulations. This entitles you to a seven day ‘cooling-off period’ starting from the day you receive the goods, during which you can cancel the order and get your money back from the company you bought the goods from.

If you aren’t able to sort out the issue direct with the company, you should contact your credit card company who may be able to help through either chargeback or Section 75.

The full leaflet is here: http://www.theukcardsassociation.org.uk/wm_documents/creditcard_yourights_a_consumer_guide(1).pdf

ILW

eddddy wrote: »

Hi wildg

Contrary to what some others are saying, it seems that the UK Cards Association are saying that s75 is appropriate in your circumstances.

Here's a quote from their leaflet "Credit cards. Your rights - a consumer guide"



The full leaflet is here: http://www.theukcardsassociation.org.uk/wm_documents/creditcard_yourights_a_consumer_guide(1).pdf

The quote refers to 7 days after receiving the goods. OP cancelled the order and therefore did not receive the goods, therefore the quoted clause would not apply.

eddddy

ILW wrote: »

The quote refers to 7 days after receiving the goods. OP cancelled the order and therefore did not receive the goods, therefore the quoted clause would not apply.

Hi ILW

That seems like a rather perverse way of interpreting the law. In any case, according to Which?:

Your right to cancel an order
The Distance Selling Regulations state that your right to cancel an order starts the moment you place your order and doesn’t end until seven working days from the day after you receive your goods.

link: http://www.which.co.uk/consumer-rights/regulation/distance-selling-regulations/

thenudeone

dalesrider wrote: »

They are correct.
You broke any contract by cancelling the order/contract.

Rubbish.

All consumer rights provided by legislation are implicitly part of the purchase contract.

It is not possible for any supplier to "opt out" of complying with DSR, SOGA or any other consumer rights. These rights are provided by statute and are over and above any other terms of the contract.
It is simply impossible for a supplier to successfully claim that those rights were not an implied as part of the contract.

Exercising rights under DSR is not breaking a contract, it is simply exercising an option under the contract, that option having been created by statute rather than the specific contract.

In my experience, CC companies hate s75 and will always try to fob consumers off with any excuse they can, but with persistence, they will usually pay out.

thenudeone

chattychappy wrote: »

(I remember looking at this a year or so back. DSRs don't directly imply rights into contracts in the same way as SOGA etc, but I concluded the effect is the same in the case of s75. Can't remember the detail now.)

In determining whether a specific issue is an implied term of a contract, the courts will try to ask: If both parties had been asked at the time of making the contract, would they have believed that the specific term was part of the contract?

In the case of DSR rights,
The consumer would almost certainly say: Yes.
The supplier can't claim that they weren't (Unless the goods can be argued to have been made to order), because statute overrides contract law.

So we are left with the position that both parties would have said that DSR applied, at the time of making the contract, hence making it an implied term IMO, breach of which makes a s75 claim possible.