Online purchase returns policy - Unfair term?

Toxteth_OGrady

I bought something online last week (pre-CRA 2015) that I am now returning for a change of mind refund. The seller's website states the following in the returns policy:

We also withhold the right to deduct a £5 fee from any refund if the original box is damaged (Tape/Labels & Stickers included). This does not affect your statutory rights.

Is this an unfair term with respect to the Consumer Contracts Regulations 2013 and the Unfair Terms in Consumer Contracts Regulations?

The reason I'm asking is that the original cardboard box was already damaged in the post when I received it.

wealdroam

Toxteth_OGrady wrote: »

I bought something online last week (pre-CRA 2015) that I am now returning for a change of mind refund. The seller's website states the following in the returns policy:



Is this an unfair term with respect to the Consumer Contracts Regulations 2013 and the Unfair Terms in Consumer Contracts Regulations?

The reason I'm asking is that the original cardboard box was already damaged in the post when I received it.

No it is not necessarily an unfair term.

Regulation 34 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 allows the seller to reduce the refund:

9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

It would more likely to be considered an unfair term if it said "We will deduct a £5 fee from any refund if the original box is damaged (Tape/Labels & Stickers included)".

But as they are only reserving the right to make that deduction, I see no problem.

unholyangel

I think that wholly depends what box they're referring to also (as well as whether the handling goes beyond what is necessary and providing the deduction reflects the diminished value - if it could be too high in some cases then theres a greater risk of the term being considered unfair).

I sell toys online. A customer recently ordered a large toy model to assemble,
to be sent by express delivery, but changed their mind and returned it. Not
only was it not returned in the original bubble wrap and brown box I used, but
the model’s box with photo and description was torn and the plastic packets
containing the plastic bricks inside had been opened. What can I do?

16. You cannot deduct for the bubble wrap and brown box since it would
have been reasonable for the customer to remove these to see the item in the
way they would in a shop. However, it would not have been necessary to go
further and open the box nor especially to open the sealed packets. You will
therefore be able to reduce the refund to reflect the diminished value. In
addition, you will only need to refund the standard cost of delivery (provided
this was offered) and not the full cost of the express delivery chosen by the
customer. And provided that you told the customer that the cost of return
delivery would fall to them, you need not pay for that.

unholyangel

On googling the terms the OP stated, it comes up with this retailer:
http://www.heydudeshoes.co.uk/returns-policy-i77

Is that correct OP?

If so, the whole paragraph from which OP quoted is more telling. They cannot refuse to refund simply because something is worn, damaged or tampered with. They would only be able to refuse a refund if they'd informed you of all the necessary information in a durable medium, your handling went beyond what was reasonable and that handling resulted in the product value being diminished to £0.

Their packaging sentence again is misleading imo as it could be taken as relating to the packaging the item is posted in. Its also misleading as they can only deduct if its diminished the value. A standard £5 makes me think they ARE talking about the postage packaging rather than the product packaging.

Goods must be returned in the same condition as received, with all original packaging. Hey Dude shoes reserves the right to refuse a refund or exchange if the goods are deemed to have been damaged, worn or tampered with. We also withhold the right to deduct a £5 fee from any refund if the original box is damaged (Tape/Labels & Stickers included). This does not affect your statutory rights.

Toxteth_OGrady

unholyangel wrote: »

Is that correct OP?

Correct. It's a shoe box.

The box has been torn through being squashed at some point before I received it. The shoes were not affected.

It's the branded shoe box and the only protection it had for delivery was a grey polythene bag wrapped with tape.

The shoes don't fit so I am returning them for a refund.

I do not believe I should liable for a potential £5 penalty.

unholyangel

Toxteth_OGrady wrote: »

Correct. It's a shoe box.

The box has been torn through being squashed at some point before I received it. The shoes were not affected.

It's the branded shoe box and the only protection it had for delivery was a grey polythene bag wrapped with tape.

The shoes don't fit so I am returning them for a refund.

I do not believe I should liable for a potential £5 penalty.

You wont be liable - as the damage wasn't caused by unreasonable handling on your part.

Of course just because you're not liable doesn't mean they won't try and say you are. Let us know how you get on. Would be interesting to find out how they enforce their terms - whether its just for items obviously damaged by the customer or whether they also try and do it for items that might have been damaged by their agent (as then the term seems to pass inappropriate risks to consumers).

Looking at the website, they seem to only sell their own shoes. Is that the case? If so, i'm not entirely sure they could justify £5 in diminished value for a shoe box if they could source another for less.

theonlywayisup

unholyangel wrote: »

You wont be liable - as the damage wasn't caused by unreasonable handling on your part.

Of course just because you're not liable doesn't mean they won't try and say you are. Let us know how you get on. Would be interesting to find out how they enforce their terms - whether its just for items obviously damaged by the customer or whether they also try and do it for items that might have been damaged by their agent (as then the term seems to pass inappropriate risks to consumers).

Looking at the website, they seem to only sell their own shoes. Is that the case? If so, i'm not entirely sure they could justify £5 in diminished value for a shoe box if they could source another for less.

This exactly.

It is quite worrying how many retailers (large ones at that) have unlawful T&C in relation to returns.