Returning goods - retailer saying it is customised...

mparker885

Hi,

First time poster so hope this is the right place!

I purchased three hand painted candle holders, all the same, over the combination of email/phone with an online retailer - the item was advertised as not in stock on their website so I sent an email to the retailer asking when they would be. The retailer replied saying they would be able to have them made to order for me from their supplier as they don't usually keep this particular one in stock all the time - I went ahead with the order paying over the phone.

However when delivered I changed my mind as I didn't really like them upon a visual inspection so I sent an email immediately to say I wanted to return them as per the consumer contracts regulations. The retailer is denying I am entitled to a refund saying they were handmade, artistic in nature and made to my specification also stating that I wanted the candle holders in a particular style which was similar to, but by their very nature not identical, to a particular style I had seen on their website so they're exempt from the regulations. All very 'solicitor style' written!

Now all I ordered was 3x"CODE NAME OF PRODUCT" in my email (which I still have) and I didn't ask for anything specifically to be customised such as wanting a particular design to be in red or for the flowers to be purple. It is simply their advertised item on their website (which I guess is what they're disputing it is similar to because it has been hand painted but then I'm thinking wouldn't anything be exempt then?!). Am I missing something here? Are the goods excluded?

Thanks in advance

frugal_mike

Handmade or made-to-order goods are not excluded from the right to cancel under the Consumer Contracts Regulations. If you did not offer any of your own specifications and simply ordered a standard item from their website then they cannot refuse a refund as long as you cancelled properly (as described in the Consumer Contracts Regulations).

Under these regulations you have 14 days from the point of delivery to notify them you are cancelling (by durable means), and then a further 14 days from the point of cancellation to send the goods back to them. They must refund you within 14 days of receiving the goods back, or your providing proof of postage (whichever is earlier).

However if they failed to give you the required information after you made the order (including your right to cancel), then the cancellation period is extended.

JReacher1

frugal_mike wrote: »

Handmade or made-to-order goods are not excluded from the right to cancel under the Consumer Contracts Regulations. If you did not offer any of your own specifications and simply ordered a standard item from their website then they cannot refuse a refund as long as you cancelled properly (as described in the Consumer Contracts Regulations).

Under these regulations you have 14 days from the point of delivery to notify them you are cancelling (by durable means), and then a further 14 days from the point of cancellation to send the goods back to them. They must refund you within 14 days of receiving the goods back, or your providing proof of postage (whichever is earlier).

However if they failed to give you the required information after you made the order (including your right to cancel), then the cancellation period is extended.

Sounds like they're going to claim that the candle holders were made to the customers specification and as such therefore covered by the exclusions specified in consumer contract regulation.

frugal_mike

JReacher1 wrote: »

Sounds like they're going to claim that the candle holders were made to the customers specification and as such therefore covered by the exclusions specified in consumer contract regulation.

It does sound like they're going to claim that, but if the customer did not actually provide any specifications then they would be incorrect. Ordering an out-of-stock item that then needs to be ordered in does not constitute customisation, and nor does ordering a handmade item unless it is handmade to a customer-supplied specification.

JReacher1

frugal_mike wrote: »

It does sound like they're going to claim that, but if the customer did not actually provide any specifications then they would be incorrect. Ordering an out-of-stock item that then needs to be ordered in does not constitute customisation, and nor does ordering a handmade item unless it is handmade to a customer-supplied specification.

Yep I agree but they ordered over the phone so I suspect will claim that the OP provided some specifications that made the product customised. If the final product is not identical to the product on the website they'll claim it was customised.

Things like this are difficult to actually get your cash back unless you want to go down the legal route.

It will depend how much money the OP spent whether it's worth it or not.

frugal_mike

JReacher1 wrote: »

Things like this are difficult to actually get your cash back unless you want to go down the legal route.

Would a chargeback work in a case like this? I've never done one myself so I don't know whether they can be used to enforce cancellations under Consumer Contracts Regulations.

mparker885

Thank you both for your advice.

Sure did...notified them on an email on the same day as delivery.

The details of the order was on email so I have a record of me asking for 3 lots of a code name and that's it...no can you make it all red, or can you make the flowers only purple etc requests. Only used the phone to make payment. Since I have the items in my possession it would be interesting to hear them say how they are customised (so far they fail to answer this question...think I'm being ignored now).

I've been trying to understand what they mean when they say it is similar but not identical to the one on the website and can only think because the patterns are slightly different (because it is hand painted it is going to look a bit different of course). That would seem a bit far fetched in my opinion because then anything hand made would be exempt!

It isn't a lot of money but I'd like to just clear it up for myself if anything! Good to know too.

vyle

Would it make any difference that they said they'd have to make them for you? The conversation you've quoted essentially goes:

You: Can i get these?

Shop: ah we don't keep them, but can make some for you (would this be considered a custom/personalised job?).

you: okay.

If they've told OP they need to be made specially, is this different to buying a hand-made (but mass produced) item?

unholyangel

vyle wrote: »

Would it make any difference that they said they'd have to make them for you? The conversation you've quoted essentially goes:

You: Can i get these?

Shop: ah we don't keep them, but can make some for you (would this be considered a custom/personalised job?).

you: okay.

If they've told OP they need to be made specially, is this different to buying a hand-made (but mass produced) item?

From: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/310044/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

I sell premier league football shirts online. Customers can order a shirt with
their own name on it or that of a premier league team player. Can the
consumer change their mind after they have ordered?

13. Items made to a particular, often unique specification are exempt from
cancellation rights on the basis that a trader might otherwise be left with a
product so specific to a particular consumer’s needs that there is no other
market for it once the consumer has cancelled the contract. Judgements of
what is truly bespoke will, therefore, inevitably be on a case by case basis. In
the above case, the customer should be able to cancel a shirt bearing a team
player name on it. However, a shirt bearing their own name would be likely to
constitute a personalised item to which cancellation rights do not apply.

14. An item made up following a consumer order does not necessarily make it
a bespoke item which is exempt from cancellation rights. An item, for example
a sofa or computer, can be assembled following an order but the component
parts may be made up of parts offered from a standard range. So, for
instance, a sofa where the consumer chooses a fabric and colour from a
range on offer will not be bespoke for the purposes of these Regulations.
However, if the consumer asks the trader to source a special finish and which
is not in the range generally offered by the trader, that is likely to be a
bespoke item.

The 2nd paragraph is more relevant but I copied and pasted them both just for completeness.

mparker885

Thanks for the input

Well from everything I’ve read here and about the regulations, it seems that even though they have made up my order at my request, because I have ordered a standard item from their range with no specific requests to customise it, it does not make it exempt. I suppose there are online retailers out there that keep no stock on site and all orders are ‘made to order’ but it doesn’t make it exempt for that reason. I’m guessing also that the fact I ordered three makes no difference either…I don’t think quantity makes a difference does it? (seems a bit silly if as a non-business consumer, you can order say a hundred and return them all but I read nothing about quantity!).

Will reply back to the retailer then with some quotes, see if that budges them

unholyangel

mparker885 wrote: »

Thanks for the input

Well from everything I’ve read here and about the regulations, it seems that even though they have made up my order at my request, because I have ordered a standard item from their range with no specific requests to customise it, it does not make it exempt. I suppose there are online retailers out there that keep no stock on site and all orders are ‘made to order’ but it doesn’t make it exempt for that reason. I’m guessing also that the fact I ordered three makes no difference either…I don’t think quantity makes a difference does it? (seems a bit silly if as a non-business consumer, you can order say a hundred and return them all but I read nothing about quantity!).

Will reply back to the retailer then with some quotes, see if that budges them

If they dont budge, perhaps suggest to them that they may wish to seek legal advice before going any further - since misleading consumers about their rights can amount to a criminal offence under the CPRs (consumer protection from unfair trading regulations).