Distance selling / sale of goods act perishable items - advice please

2stixoftwixes

Hi
I'm hoping someone can give me advice.
I run an online plant shop and last week a customer ordered over £100 of plants
The goods were sent on an overnight delivery scheduled Tuesday - obviously a signature would be required
The customer wasn't in, even though full tracking was sent and SMS messages were sent notifying delivery.
The goods went back to the depot and attempted re-delivery Weds - again customer wasn't in - even though cards were left both times for the couriers to be contacted
The goods have been sat in the depot all weekend, the customer has just informed me that she works every day and hasn't bothered to contact the couriers to say it can be left at the post office or with a neighbour.

The plants will only be good for another day or so
Does anyone know the law on this
Perishable items are not returnable under consumer regulations, nor are they cancellable, but I can't find any advice of where we stand if they weren't actually delivered in the first place or the customer refuses to collect.
If the customer doesn't get the goods, I stand to lose £100 of plants, plus £16 postage costs
Can anyone point me to the correct legislation anywhere?
Thanks

shaun_from_Africa

Under the Consumer rights act, the plants remain at your risk until they are actually delivered to the purchaser or to a person nominated by the purchaser to take possession of them.
I know that this sucks, but legally, I don't think you have any option but to refund them.

http://www.legislation.gov.uk/ukpga/2015/15/section/29/enacted

2stixoftwixes

Hmmm .... Thanks, so the fact that they can't be returned or cancelled is immaterial by legislation is in material
I was just thinking back to a DFS sofa I bought online that was 'personally made' and the terms and conditions stated it was non- cancellable as it was made by DFS to our design
But your definition above is if I don't receive the goods (make sure I'm out) I'm not liable?

DoaM

Alternative viewpoint ... if the consumer refuses to collect despite multiple delivery attempts being made, then is the consumer effectively asking to cancel the contract? Certain goods (bought online*) are exempt from cancellation rights for change of mind ... I don't know if perishable plants fall into that category. Check out the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

* All goods bought in store are exempt from change of mind cancellation rights, unless the seller's T&Cs allow for such cancellation. Thus your DFS example isn't relevant to the scenario you face.

born_again

"The customer has just informed me that she works every day and hasn't bothered to contact the couriers to say it can be left at the post office or with a neighbour."
Never ceases to amaze the number of people that order online, knowing they are not going to be in. Fail to advise anyone that goods can be left elsewhere (post office? given they work all day.)
TBH. They deserve all they receive. As what they now receive is all their fault for not updating people.

2stixoftwixes

DoaM said:

* All goods bought in store are exempt from change of mind cancellation rights, unless the seller's T&Cs allow for such cancellation. Thus your DFS example isn't relevant to the scenario you face.

It wasn't bought in a store - it was bought online

DFS states in their TOS
Consumer Contract regulations only apply to your order if the goods have not been custom made to your specification or if you have not examined the product in one of our showrooms. If the Consumer Contract Regulations do apply you can cancel your furniture by notifying us, in writing, before delivery or within 14 working days beginning with the day after the date of delivery.

So DFS are saying that because it's "custom made"  ie, colour, finish, legs etc it cannot be cancelled which is correct under law
BUT what if I go on holiday on delivery day for a month
according to your example , I have no worries, because the title hasn't passed to me.

 The law is grey on this matter - which is where I need advice

If someone isn't in, is it classed as a cancellation - if it was headphones - no problem return, for full refund. But plants been left to die .....?

JJ_Egan

<
 The law is grey on this matter - which is where I need advice

If someone isn't in, is it classed as a cancellation - if it was headphones - no problem return, for full refund. But plants been left to die>

A legal expert as opposed to random users on a non legal forum if you want definitive answer.

George_Michael

I would suggest the following.
Work out your total cost (purchase price of the plants, P+P etc) and e-mail the buyer and state that as the plants weren't delivered due to an oversight on their part, you are prepared to offer them a goodwill payment of the amount paid minus your costs.

They may decide to take you up on this and if they don't, it will probably come down to a decision by their card issuer / Paypal (depending on how they paid) and to whether or not they should be refunded.

CardinalWolsey

Does the OP offer any form of warranty regarding the viability of the plants they provide? What terms and conditions do they have around delivery, and what happens if unable to deliver?

George_Michael

CardinalWolsey said:

Does the OP offer any form of warranty regarding the viability of the plants they provide? What terms and conditions do they have around delivery, and what happens if unable to deliver?

They were able to deliver, it's just the customer can't be bothered to collect the plants or arrange a suitable re-delivery.
Even if there is a warranty covering the viability of the plants, I doubt if this would apply if the plants are dead because they've been left in storage due to inactions by the purchaser.

2stixoftwixes

I have just looked at the sale of goods act 1979 

37Buyer’s liability for not taking delivery of goods.

(1)When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods.

That would cover me - but isn't the sale of goods act now void and is now consumer rights act,  or does some of the sale of goods act still apply?