Order cancelled but still delivered and retailer won't refund

naedanger

MobileSaver wrote: »

... interestingly their T&Cs don't seem to have any terms to do with orders.

I can't see any terms regarding orders either. However if payment was taken by them before you cancelled the order then I suspect they may be able to argue that taking payment constituted their acceptance of your offer. And that you therefore cancelled after the contract had commenced and so are bound by the terms about returns listed on their website.

unholyangel

naedanger wrote: »

I can't see any terms regarding orders either. However if payment was taken by them before you cancelled the order then I suspect they may be able to argue that taking payment constituted their acceptance of your offer. And that you therefore cancelled after the contract had commenced and so are bound by the terms about returns listed on their website.

OP might still have some leeway with that - the terms of the acceptance must exactly match that of the offer otherwise it amounts to a counter offer (which also destroys the original offer).

There is some variation in chargeback schemes though so OP may want to look into the reason codes for their own issuer and see if theres anything that might cover it. They could still complain to the ombudsman (as the ombudsman apparently think its good practice to banks to at least attempt a chargeback) but I'm not convinced it would be successful and small claims might be their only route of redress.

I suppose they could also ask the retailer for the details of their ADR provider.

Cardinal-Red

I may be out of date here, and while I love the idea of "is there even a contract" discussion, isn't this simpler using the Distance Selling Regulations?

I had experience of trying to return goods under these, a fight with the seller and a small claims application, but got everything back in the end.

DoaM

The DSRs don't exist anymore. They were superseded by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Many of the same rights moved over, but the framework (time scales etc.) changed a little.

Either way ... if the online T&Cs don't specify when a contract has concluded (e.g. after delivery), then defacto contract law applies - offer, acceptance, payment - so the contract is deemed concluded after payment.

Cardinal-Red

Yes I thought they may be gone in name, my own dispute under them was way back in 2009 - but doesn't the principle remain? That notice given to the seller for any reason within the notice period allows the buyer to return the goods?

Seems like from the wording of the regs, this is the position if there has been a contract concluded; so both angles are open (assuming the OP meets the requirements for giving notice under the regs?)

MobileSaver

daytona0 wrote: »

- knowing full well that an email is potentially not going to be opened for up to 3 working days!
- Possible that you have been replying to an unmonitored or automated account?

The email address was [EMAIL="sales@fastlec.co.uk"]sales@fastlec.co.uk[/EMAIL] and was the only one they gave to make contact - it's not for me to second-guess how long they may take to reply!

naedanger wrote: »

I can't see any terms regarding orders either. However if payment was taken by them before you cancelled the order then I suspect they may be able to argue that taking payment constituted their acceptance of your offer.

When placing the order there was no tickbox or similar or indeed any mention of agreeing to any terms of business. What there was was lots of references to "Fast, Free Delivery", "Same Day Despatch on In-Stock Items" and no reference to the items being out of stock; in this day and age of Amazon's 1 hour delivery, delivering a week later is not what was advertised and not the basis on which I placed my order.

Although I'd rather not have to claim through the courts I'm very confident my local court would find in my favour. In my opinion the crucial fact is that (after they advised they could not offer "fast, free delivery") I notified them of the order cancellation two days before they despatched the goods.

unholyangel wrote: »

I suppose they could also ask the retailer for the details of their ADR provider.

Good idea except that the retailer has resolutely ignored six emails (from 2 different email accounts) so far but yes I will contact them again.

Cardinal-Red wrote: »

I may be out of date here, and while I love the idea of "is there even a contract" discussion, isn't this simpler using the Distance Selling Regulations?

The Consumer Contracts (formerly Distance Selling) regulations talk about "durable confirmation" which has not been received. What I'm trying to avoid is paying to return the goods and then having to claim it back, I'm not sure if the CCR/DSR route helps me or not?

MobileSaver

DoaM wrote: »

defacto contract law applies - offer, acceptance, payment - so the contract is deemed concluded after payment.

Except that as unholyangel mentioned, my offer was on the basis of "fast, free delivery" and after they countered that they could not supply this I withdrew my offer...

naedanger

Cardinal-Red wrote: »

I may be out of date here, and while I love the idea of "is there even a contract" discussion, isn't this simpler using the Distance Selling Regulations?

I had experience of trying to return goods under these, a fight with the seller and a small claims application, but got everything back in the end.

The purpose of the "is there even a contract" discussion was to see if there was a way of putting the liability on the credit card company as it would be easier pursuing them for the money, especially if the other party had no right to take it. Furthermore had there been no contract the op would not be liable for the return postage.

Unfortunately the supplier's terms seem unusual in that a contract may exist from the point of order. (Most online companies state that a contract is only formed when the order is dispatched or even delivered, in order to avoid them being liable to fulfill the order even if stock was no longer available or they made a pricing error that would not obviously have been a pricing error.)

naedanger

MobileSaver wrote: »

TWhen placing the order there was no tickbox or similar or indeed any mention of agreeing to any terms of business. What there was was lots of references to "Fast, Free Delivery", "Same Day Despatch on In-Stock Items" and no reference to the items being out of stock; in this day and age of Amazon's 1 hour delivery, delivering a week later is not what was advertised and not the basis on which I placed my order.

Perhaps you could argue that your offer was on the basis of "fast, free delivery" and after they countered that they could not supply this you withdrew your offer. Therefore no contract exists therefore your cc company needs to refund you, and if not then pursue them via FOS ultimately.

But I suggest you pay to return the goods first. So that if you lose with FOS you are not left with the goods and no right to return (as time expired). Even if you lose at FOS you could of course still take legal action, but that involves the risk you lose and have to pay fees/costs. And I am not sure how strong your case would be.

agrinnall

So have you discussed a Chargeback with your card issuer yet? If not then discussing court action seems a bit of a waste of time and potentially money if you can get your money back without doing anything other than filling in a form. Wealdroam's proviso may come into play, but until you ask you won't know, and I think the failure of the retailer to communicate may mitigate against the need to return the goods forst.