Distance selling regs, non-refundable deposit & live animals

psammead

Hi everyone

I am asking this on behalf of my daughter in law.

She breeds and shows rabbits and skinny pigs (hairless and weird looking to me but each to their own!).

She runs her own website where potential owners can check out the animals she has for sale. She state clearly that she requires a deposit for each animal and that the deposit is non-fundable.

Now she sold 2 of these skinny pigs so a lady over the internet. The buyer didn't come and see animals which she kept asking them to do but they said they were happy with the pictures she sent them. So they paid her the £95 deposit via paypal. The animals are not ready to leave mum yet which the buyer obviously understood.

They got in touch however within 7 days saying they had changed their mind and no longer wanted them and asked for their deposit back. She pointed out the deposit is non refundable but they have since bombarded her with various emails claiming the DSR and the recent update to it plus how they will take her to a small claims court and ruin her reputation as a breeder etc.

She is a right state about it because as she says whats the point of having a non-refundable deposit if anyone can come along and throw the DSR rules at her and get it back. Shes had alot of stick lately from other breeders after she purchased some animals that turned out to be very poorly when she got them home and 2 of the died as a result. Luckily she is very responsible and had kept them in quarantine as she always does with any new stock. These breeders reported her to the RSPCA saying her animals were abused (she also has horses). This backfired on them though as the RSPCA were so impressed they asked her if she would be willing to act as a foster home for small pets and horses, which she politely turned down as the poor girl has enough to do in a day!

Anyway I am digressing but she spent most of last night to me on the phone in tears - she really doesn't need the stress of it all but feels she should stand by the statement of it being a non-refundable deposit! The buyer hasn't really given her a reason other than they've changed their mind so shes now worrying they have somehow heard about the vindictive rumours the nasty breeders are spreading.

So is there any advise I can give her? I realise animals are covered by the DSR and so in reality she probably doesn't have a leg to stand on but is there anything anyone can suggest that might make her feel a little better about the situation? Or is there anything she can add to her T&Cs to make anything like this less likely in the future?

It does seems unfair as she had already had other buyers interested in them who have now either gone elsewhere or asked whats wrong with them then if the other buyer has backed out?

Thanks all

tasticz

Sorry cant help with your situation but if she wants to say in control of charge backs and refunds she should stop using PayPal and use skrill/neteller/bank transfer or even cash in hand that way a deal is final

the_lunatic_is_in_my_head

As of the middle of June, DSR no longer applies so the advice would depend on the date the contract was formed.

I can't see an exemption covering live animals in the new regs, your friend should seek some expert advice on this in general.

The new regs doesn't cover deposits other than stating:

The information referred to in regulations 10(1) and 13(1) is (subject to the note at the end of this Schedule)—

where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

but this doesn't say whether you can make a deposit non-refundable for distance sales.

If you can, they'd also need to show the buyer was aware the deposit was non-refundable (i.e stated in an email or letter, if they discussed it on the phone for example the buyer could claim they never knew it was non-refundable and there's no proof to display in court it was non-refundable).

Just to add your friend may be better insisting potential buyers come and see the animals, take the deposit in cash and get them to sign a receipt with "non-refundable deposit" stated, not only will this problem not arise again but they'll have an idea of what kind of people are looking to take the animals before committing herself to a contract.

SuperHan

A non refundable deposit can only be kept to cover costs incurred. Your daughter has a duty to mitigate her losses, i.e. if she finds another seller willing to pay full price she has to refund the full deposit.

(Out of interest, could you PM her website - I have a bunny and I'm always on the look out for reputable breeders to maybe grow my brood!)

psammead

Hi and thank you

Yes the buyer was aware the deposit is non refundable but they claim it makes no difference as the 7/14 day cooling off period over rules that.

A large portion of the animals she sells is done with buyers coming to her to see the animals but these particular ones are quite rare and unusual and sell all over the country so there is the odd buyer who is willing to risk it. I saw her emails trying to get them to come and view the animals but the buyer insisted she trusted my daughter in law and was more than happy to buy sight unseen so to speak. As a result of this my daughter in law had said she would deliver them herself at her own expense so she could see the guinea pigs were being kept in the right conditions which they buyer was happy with.

They paid the deposit on the 29th June.

Surely though how they pay the deposit is regardless if they are able to use DSR or whatever it is now to back out of the sale?

Thanks

elsien

Would it make her feel better to consider that if they change their mind so easily, her animals are possibly best off not going there anyway?
Its not going to help her in this case, but I'm fairly sure there's breeders of different animals on the pet part of the forum. Maybe they could help with advice about deposits etc?

the_lunatic_is_in_my_head

psammead wrote: »

Hi and thank you

Yes the buyer was aware the deposit is non refundable

As above does your friend have any proof it was taken as non refundable.

psammead wrote: »

but these particular ones are quite rare and unusual and sell all over the country so there is the odd buyer who is willing to risk it.

I think it's more that your friend is willing to risk it, if the animals are that desirable any willing buyer should travel to see the animal or there will be another who will to replace those that won't.

Personally I would be wary of a breeder that doesn't want to meet the people who are going to own the animal before committing themselves to sell to them.

This is just my personal opinion and doesn't have anything to do with the buyer's rights or your friends obligations.

The buyer may just be going in on the offensive in the hope your friend will refund without questioning who is right but just in-case the buyer does decide to take the matter further your friend should seek expert legal advice if they are going to hold on to the deposit and it would also let the seller know their rights going forward, if they can't charge a non refundable deposit for distance sales it's better to know now than keep asking for them.

psammead

I had wondered if this was the best forum, didn't think of the pets one!

I'll copy and paste it on there too. I just feel so sorry for her as she has really gone through the mill this past 6 months with one thing an danother and now this on top she was talking about selling up completely and giving up which would be such a shame as she loves doing it.

Ok thanks

psammead

#7 it is clearly stated on her website. Plus the buyer isn't disputing whether it's legal or not, just doesn't make a difference!

She was wary of selling to them without them coming as you say, normally when people are paying what these are worth then they do indeed come and view themselves plus it gives her chance to ask them face to face any questions such as the size of animals home,, what experience they've had, can other observe the 5 right set out by the RSPCA etc. that's why she insisted on delivering them to the buyer herself to check if they could give them a good home, and the buyer seemed happy with this.

psammead

She did state if she wasn't happy with the home they were going to she had the right to cancel the sale.

the_lunatic_is_in_my_head

psammead wrote: »

She did state if she wasn't happy with the home they were going to she had the right to cancel the sale.

I don't think that could be classed as a fair term and she could find if she refuses to sell to someone they'll have a claim for breach of contract unless the conditions could be demonstrated as extremely bad.