Consumer Rights vs Vendor T & C’s

Jenni_D

Butter_Crunch said:

Jenni_D said:

unholyangel said:

So if the goods aren't sealed and aren't otherwise exempt, you should have the right to cancel. 
If the goods are sealed and you don't unseal them, you have the right to cancel. 
But the trader must also inform you of the circumstances in which you can lose the right to cancel. 

Most retailers fail with the information requirement. 

Lot's of discussion around the nuance of the legislation, but let's focus on what matters for the OP ... did the retailer give the OP the T&Cs in a durable medium (i.e. in an email is OK - a link in an email to website T&Cs is not) before they became bound by the contract? (i.e. before delivery). And did those (durable medium) T&Cs say that sealed goods are exempt from the right to return?

When I ordered on-line I received an order acknowledgment, but there’s no T & Cs on it nor is there a link to their website T & Cs. Only thing on there is a link to a map of where the shop is (I chose click & collect) & an email address if you needed to ask any questions. I was handed them in a sealed non see through bag through a half opened door. He didn’t say anything other than thanks. He wasn’t even wearing a mask, thankfully I was. 

Did you pay online? (All the preceding discussion is moot if you paid on collection).

Butter_Crunch

unholyangel said:

Butter_Crunch said:

@unholyangel - thanks for that, it’s appreciated. Obviously, I’m not going to consider taking them to court over a £20 tank. It’s a matter of principle & their carte blanche approach. I'll approach them again & see what they say. If they still refuse, I’m not sure what I can do, other than maybe put it down to experience..

As a pragmatic approach, if it's leakproof, you could fill it with a different liquid to give yourself easy variety without having to wait till you finish the current one. You obviously liked the tank enough to buy it.

Or, sell it on. 

I bought the wrong tank. It doesn’t take the same coils as I have. Initially I asked them if they price matched as the one I bought off them was very over priced. That’s my fault not theirs. I should have checked. I didn’t think they’d be £10 difference on a £20 tank though. I paid £19.99 & whilst looking round for other things, noticed I could of bought it for £8.99. If they price matched, I was going to keep it & buy a rebuildable coil, save having to buy coils that I didn’t really need. I said if they were unable to price match, could they let me know it was convenient to take the tank back for a refund. As soon as I mentioned the torn cellophane, the saga started...

its not worth selling on after paying £20, if you can get them brand new for £8.99..

Butter_Crunch

I just got a response & they’re still refusing to refund me. I asked for the contact details for their head office & all they gave me was the email details & address of the very shop that I’m dealing with, sigh.  Did a search on companies house & asked for contact details of the director named on there. Just waiting for their response. At least this is passing some time during lockdown 😷

zzyzx1221

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

Butter_Crunch

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

I’m not even sure if there is such a thing as hygienic sealing. I think the shop is using the fact that it ‘just happened’ to wrapped in cellophane as an excuse not to refund me. If I’d have bought a pack of the pods, which aren’t sealed, they would have had to refund me, as they weren’t sealed. I’m assuming the one’s they have, will be exactly the same as the one’s I’ve received off two different companies.

zzyzx1221

Butter_Crunch said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

I’m not even sure if there is such a thing as hygienic sealing. I think the shop is using the fact that it ‘just happened’ to wrapped in cellophane as an excuse not to refund me. If I’d have bought a pack of the pods, which aren’t sealed, they would have had to refund me, as they weren’t sealed. I’m assuming the one’s they have, will be exactly the same as the one’s I’ve received off two different companies.

I'm sure they are, but my point is that I don't see why they can't say that.  Your argument should be that it isn't something that needs a hygiene seal in the first place, not that the cellophane isn't one.  I don't think you'll get anywhere to be honest, at least not until you really show some teeth and send an LBA, as I suspect this is just a retailer that isn't particularly consumer-friendly.  Similarly, I don't think people's suggestions about the notice being in a durable medium is going to help you, not because it's wrong, but because I don't think this retailer is going to give two hoots.

That's my take on this anyway.

unholyangel

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

Or when it goes into detail about being it being impossible or excessively difficult for the trader to take necessary measures to make them resaleable? 

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

If goods aren't exempt or the right to cancel isn't lost, then retailers need to allow the return. Although they may be able to make a deduction from the refund to account for diminished value if:
1) The retailer complies with their obligations around providing information (including that the refund can be reduced in these circumstances) and,
2) The consumers handling goes beyond what is "reasonable" and,
3) That handling actually diminishes the value of the goods 

zzyzx1221

unholyangel said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Butter_Crunch

zzyzx1221 said:

Butter_Crunch said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

I’m not even sure if there is such a thing as hygienic sealing. I think the shop is using the fact that it ‘just happened’ to wrapped in cellophane as an excuse not to refund me. If I’d have bought a pack of the pods, which aren’t sealed, they would have had to refund me, as they weren’t sealed. I’m assuming the one’s they have, will be exactly the same as the one’s I’ve received off two different companies.

I'm sure they are, but my point is that I don't see why they can't say that.  Your argument should be that it isn't something that needs a hygiene seal in the first place, not that the cellophane isn't one.  I don't think you'll get anywhere to be honest, at least not until you really show some teeth and send an LBA, as I suspect this is just a retailer that isn't particularly consumer-friendly.  Similarly, I don't think people's suggestions about the notice being in a durable medium is going to help you, not because it's wrong, but because I don't think this retailer is going to give two hoots.

That's my take on this anyway.

I agree with you. Although, when I mentioned customer satisfaction, they did offer to up my reward points from 630 to 2000 to enable me to claim £10 off my next order. As I don’t really buy that much, I declined as I’m still left with a tank I can’t use. What’s an LBA?  For me, it’s the after sales service which proves how good a company is. This one isn’t doing very well so far. They’ve declined to give me a contact email for the director as named on companies house. They’ve just said that they’ve forwarded my conversation onto him..

zzyzx1221

Butter_Crunch said:

zzyzx1221 said:

Butter_Crunch said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(3) The rights conferred by this Part cease to be available in the following circumstances—
(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

I’m not even sure if there is such a thing as hygienic sealing. I think the shop is using the fact that it ‘just happened’ to wrapped in cellophane as an excuse not to refund me. If I’d have bought a pack of the pods, which aren’t sealed, they would have had to refund me, as they weren’t sealed. I’m assuming the one’s they have, will be exactly the same as the one’s I’ve received off two different companies.

I'm sure they are, but my point is that I don't see why they can't say that.  Your argument should be that it isn't something that needs a hygiene seal in the first place, not that the cellophane isn't one.  I don't think you'll get anywhere to be honest, at least not until you really show some teeth and send an LBA, as I suspect this is just a retailer that isn't particularly consumer-friendly.  Similarly, I don't think people's suggestions about the notice being in a durable medium is going to help you, not because it's wrong, but because I don't think this retailer is going to give two hoots.

That's my take on this anyway.

I agree with you. Although, when I mentioned customer satisfaction, they did offer to up my reward points from 630 to 2000 to enable me to claim £10 off my next order. As I don’t really buy that much, I declined as I’m still left with a tank I can’t use. What’s an LBA?  For me, it’s the after sales service which proves how good a company is. This one isn’t doing very well so far. They’ve declined to give me a contact email for the director as named on companies house. They’ve just said that they’ve forwarded my conversation onto him..

Letter Before Action