Refund Nightmare - Section 75 Questions

chattychappy

thenudeone wrote: »

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?

Agreed. The well-established officious bystander test.

thenudeone wrote: »

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.

That's a strong argument, but I'm not totally convinced. The statute certainly allows the contract to be cancelled and you cannot contract out of that. But that's not to say that this is via an implied term (and therefore capable of breach). Both parties might well have known that right of cancellation via DSRs apply - but that's not the same believing they are terms of the contract. SOGA (for example) differs in that it expressly inserts terms into a contract and/or elevates certain terms to conditions. However I believe it is an established principal that it is implied into a contract that the parties intend to follow the law - so I arrive at the same result by a slightly different route. Willing to stand corrected.

thenudeone wrote: »

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.

Agreed.

ILW

eddddy wrote: »

Hi ILW

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



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

I was just commenting on the specific term you quoted.

dalesrider

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

To me I see the word.... MAY in that quote from the UK cards association.
NOT - is appropriate -

Given that there is no chargeback right for cancelation of goods under the DSR...
Unless the Op could get a refund receipt. Which is not likely given they are not responding.

wildg

Thanks for all the advice. In the end the company *finally* sent the money back and gave me a £20 book to say sorry. They're clearly just very very disorganised!