Charge-back under Section 25

bendaw

I accepted an advertised service that included a free item which was not as described and of much lower value.

I requested a charge-back from my bank which was refused saying that the free item did not form part of the contract, and as long as the service was provided they didn't need to give me anything extra.

Has anyone had a similar experience or can offer a legal opinion?

grumbler

Impossible to give any advice without knowing the details.

Generally, banks are not courts and do chargeback in simple and obvious cases only like wrong amount, non-delivery, fake goods etc.

MSE article: Visa, Mastercard & Amex Chargeback

If it's less clear, you have to sue the supplier. If you paid by a CC and the amount was £100+, your card provider is jointly liable with the supplier and you can sue them instead. That's what section 75 is about. In the simplest cases CC provider can settle without court, but in this case it's unlikely as they refused the chargeback and now have to pay out of their own pocket.

MSE article: Section 75 refunds

chattychappy

Perhaps you can give more detail.

In general if an item is offered "free" along with something else, then indeed it is part of the contract. But as I say, more specifics needed.

I'm guessing you meant s75 rather than s25.

Exile_geordie

Heres more detail
https://forums.moneysavingexpert.com/discussion/5138934=

InsideInsurance

The devil is in the detail and it comes down to semantics

There was no promise of a higher spec just that it was newer but given they gave you a 3rd gen and the latest is still the 3rd gen what were you expecting the offer to provide for you?

DCFC79

I remember that thread, does the OP have a case ?

bendaw

chattychappy wrote: »

Perhaps you can give more detail.

In general if an item is offered "free" along with something else, then indeed it is part of the contract. But as I say, more specifics needed.

I'm guessing you meant s75 rather than s25.

Thanks.

I was only trying to find out if the legal precedent of whether a free gift is part of the contract or not under section 75.

In my case the bank has stated that I bought the subscription and the Kindle was a free gift. The Mail has provided the subscription service and would have been perfectly entitled to have removed the offer of the free Kindle at any point.

The Mail hasn't used this argument and even offers to replace the Kindle should it prove faulty inside of a year.

I've heard of free TV's being similarly offered as inducement to buy new mobile phone contracts and can't believe that they would be entitled to refuse to provide the TV once you'd paid for it.

bendaw

InsideInsurance wrote: »

The devil is in the detail and it comes down to semantics

There was no promise of a higher spec just that it was newer but given they gave you a 3rd gen and the latest is still the 3rd gen what were you expecting the offer to provide for you?

No, that's not correct.

The offer was for an upgrade from the 3rd gen Kindle and the only possible upgrade to the 3rd gen Kindle is to the current one with the two cameras

Tixy

You did pay by credit card?

But in the first instance you tried to do a charge-back not a claim under section 75? Is that correct?

So have you yet tried to make a section 75 claim? and if so how did the cc provider respond to that?

InsideInsurance

bendaw wrote: »

No, that's not correct.

The offer was for an upgrade from the 3rd gen Kindle and the only possible upgrade to the 3rd gen Kindle is to the current one with the two cameras

Your previous thread didnt say it was an upgrade but a newer one. This is why I say the devil is in the detail. You need to see exactly, word for word, what it stated including any foot notes/ T&Cs etc.

bendaw wrote: »

I was only trying to find out if the legal precedent of whether a free gift is part of the contract or not under section 75.

In my case the bank has stated that I bought the subscription and the Kindle was a free gift. The Mail has provided the subscription service and would have been perfectly entitled to have removed the offer of the free Kindle at any point.

The Mail hasn't used this argument and even offers to replace the Kindle should it prove faulty inside of a year.

I've heard of free TV's being similarly offered as inducement to buy new mobile phone contracts and can't believe that they would be entitled to refuse to provide the TV once you'd paid for it.

It does form part of the contract but the contract normally will be a written list of T&Cs and not purely some marketing mailshot/ advert.

The T&Cs would advise if its "subject to availability" or other such conditions were applied to it.

On the basis that they did provide an item its their choice if they argue it on the grounds that it does meet their contractual obligations or if they couldnt meet them, are enforcing the "if available" clause but sent this as GoGW as its a lot better than nothing.

The former argument they evidently believe is the better one either from a legal perspective or a PR one etc.

The bank is technically wrong but may in practice be right subject to the terms

bendaw

Tixy wrote: »

You did pay by credit card?

But in the first instance you tried to do a charge-back not a claim under section 75? Is that correct?

So have you yet tried to make a section 75 claim? and if so how did the cc provider respond to that?

I found out that charge-back is a voluntary scheme but under section 25 it's enforceable in law if it's over £100.

So I only claimed a refund under section 75 (disputed transaction?) and not a charge-back and that's what was refused by the bank.