Visa debit card - section 75???

grumbler

meer53 wrote: »

From what the OP has said, that the jewellery is Resin, then even with evidence, this might not work anyway as Amber is Resin.

Your logic is fundamentally flawed.

It would be correct if the receipt said 'resin'. This would have covered any resin, including amber (as amber is a variety of resin), but not vice versa. Amber is resin, but resin is a more generic term and isn't necessarily amber.

E.g. you buy gold, the receipt says 'gold', but in fact it's brass.
Both gold and brass are metals.
You say that this might not work as brass is metal.

If the receipt says 'amber', but the item is some other variety of resin, not amber, then it's misrepresentation, if not deception, as resin isn't a variety of amber.

meer53

The receipt says Amber. The OP has been told that the jewellery is Resin. Amber is Resin. I'm looking at this from a chargeback/dispute point of view.

As the OP has been advised they are out of time to dispute this under a chargeback and they don't appear to have proof that there has been a breach of contract, then they have the option to take it to court. As the transaction was over £1k i can't see the bank rolling over and refunding on this one.

grumbler

meer53 wrote: »

The receipt says Amber. The OP has been told that the jewellery is Resin.

This obviously means that it's some other sort of resin, not amber. Of course, this can be worded better for the court.

E.g. you buy white gold, take it to an expert to test if it's what the receipt says, and the expert says it's just some white metal. In this context the expert obviously means that it isn't white gold, otherwise he would have just confirmed that it was. The expert's task was to check if it was gold, not to establish what exactly metal or alloy it was other than gold.

As the OP has been advised they are out of time to dispute this under a chargeback and they don't appear to have proof that there has been a breach of contract,

The bank's reply that 'amber' in the receipt meant the colour, not the material, was laughable unless the receipt really said something like 'amber stone' or 'amber resin'.

marjesoutar

Thank you Grumbler, your common sense responses give me hope that any judge will take a similar line.

I'm awaiting to hear back from a manager (hopefully) at the bank, otherwise I shall start the court paperwork.

jonesMUFCforever

Can you use the small claims for an overseas defendant?

marjesoutar

well I thought I just stated the bank as the defendant if they are jointly liable?

Buzby

There is no joint liability for a DEBIT card, only a credit card. You will have to take the hit on this yourself I'm afraid.

marjesoutar

oh for goodness sake...................have you read the whole thread????

chattychappy

Armorica wrote: »

it's difficult to claim misrepresentation when you were buying the goods in person and just chose not to verify the goods for which you were spending a very large sum of money.

Nonsense. Plenty of case law on this - put simply, you are not expected to carry out any kind of verification of the representations made to you. However, if you do, and you discover the truth prior to contracting then indeed you can't claim misrepresentation (because you are no longer relying on the representation).

jonesMUFCforever wrote: »

Can you use the small claims for an overseas defendant?

Usually - and in this case, the CC would be UK based anyway.

But there are two related issues.

1) Choice of law.
The contract was formed in Morocco. So as mentioned in my earlier post, we could have a case where the S75 CCA1974 Act acts as a "wrapper" around Moroccan law and in particular, their concepts of breach of contract and mispresentation. I say "could" because AFAIK, this is not totally settled. But it is settled that S75 applies to overseas purchases. English courts often have to decide cases according to foreign law. In some cases, foreign lawyers act as expert witnesses. I was involved in a case where the courts were trying to decide something according to Taiwanese law. It became even more complicated when it was pointed out that the UK doesn't recognise the Taiwanese government so perhaps (mainland) Chinese law should apply... Both parties agreed to apply English law!

2) Jurisdiction.
Sometimes contracts have an "exclusive jurisdiction" clause saying that the courts of XXX shall have exclusive jurisdiction. Unlikely in the case of a purchase in a shop/market. But where this clause exists, that could force the cardholder to sue the CC in the country concerned. The foreign courts might have trouble accepting that the (foreign to them) S75 imposes joint liability on a third party (ie the CC) in their country.

meer53

marjesoutar wrote: »

oh for goodness sake...................have you read the whole thread????

Buzby is right. The joint liability only comes into play for credit card transactions.

You haven't said how far into your overdraft the transaction took you ? Were there other transactions which took you into your overdraft too ? You need to check with your bank whether they will entertain a Section 75 claim for a debit card payment which uses your overdraft. They may not, which means you'll have a completely different argument to overcome.

Before you start issuing court documents, you need to clarify this first.