Consumer Rights vs Vendor T & C’s

Manxman_in_exile

Manxman_in_exile said:

unholyangel said:

davidmcn said:

unholyangel said:

I'd suggest that a vape tank (or at least the drip tip part of it, which is removable) is akin to a mug or water bottle. Yet those aren't sealed, so don't appear to be a hygiene concern. 

But I'm not aware of any requirement that the item was sealed in order for it to be non-returnable for hygiene reasons.

You mean other than the consumer contracts regulations which give you the right to cancel distance contracts for 14 days minimum and only make an exception to the rule IF the goods are sealed for hygiene reasons and they become unsealed after delivery?

Does it say that the reason for the seal must be hygiene?

"... 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... "

I read that as the goods not being suitable for return due to hygiene reasons, not that they must be sealed for hygiene reasons?  (I agree they need to be sealed, but not necessarily the reason for being sealed).

Just as a reminder, that was (I think) my original question.  I'm not querying how the regulations might be interpreted by a court in order to put them into effect, I'm simply pointing out that the regulation doesn't say that the goods in question need to sealed for reasons of hygiene or health . I haven't seen anything here yet that suggests I'm wrong as to the wording of the regulation and it would seem that at least a couple of other people seem to share that point of view 

unholyangel

Manxman_in_exile said:

I think I'd start off with the fact that the legislation doesn't say they have to be in the first place.

Apart from the european case you cited is there any other authority (apart from guidance that may or may not reliably state what the law is) that states that the reason for sealing the goods must be health or hygiene related?  Or are you saying that that is the only way to make sense of what looks (to me) like a badly drafted piece of legislation?

I might very well agree with you that a court would decide that the provision in question makes no sense if the reason for sealing is not to do with health or hygiene.  But has a UK court made that actual decision yet?

My original question and point was that the oft quoted legislation does not say that the reason for sealing must be hygiene or health related - and I still don't think it does.  I don't know what a court would say the wording used actually meant.

But how do you convince them that the goods can't be returned once a seal is broken due to hygiene concerns, when the purpose of the seal wasn't to preserve the integrity of the hygiene? 

As before, a ribbon tied around a mattress can't be said to be for hygiene reasons, because it doesn't offer any protection against that risk. Therefore removing the ribbon, although technically breaking a seal, can't be said to deprive the goods of it's guarantee on hygiene protection - because it never offered that. 

I'm not saying it has to be elaborate. Just enough to protect against whatever the H&H risk is. Ibuprofen blister packs would be one such item. Simple piece of foil over the back. Depressed lid of a jar indicating air tight seal. The rings on bottles etc. All of those exist for safety reasons and not for shipping purposes. 

Manxman_in_exile

unholyangel said:

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [Directive 2011/83] be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

And in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

You seem to be agreeing that the case you cited is not an authority as to why the goods have been sealed, but rather their nature?

It seems to me that you might be making a false inferential leap in the form of the syllogism:

      1.  The goods must have been sealed;

      2.   The goods must not be returnable for health or hygiene reasons;

      3.  Therefore the goods must also have been sealed for health or hygiene reasons.

I don't see that it necessarily follows.

unholyangel

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [Directive 2011/83] be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

And in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

So the decision is about mattresses, not about how they are packaged.

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. 

If the goods were not sealed for the purpose of preserving their hygiene, how can breaking that seal deprive them of any hygiene protection? 

Manxman_in_exile

unholyangel said:

Manxman_in_exile said:

I think I'd start off with the fact that the legislation doesn't say they have to be in the first place.

Apart from the european case you cited is there any other authority (apart from guidance that may or may not reliably state what the law is) that states that the reason for sealing the goods must be health or hygiene related?  Or are you saying that that is the only way to make sense of what looks (to me) like a badly drafted piece of legislation?

I might very well agree with you that a court would decide that the provision in question makes no sense if the reason for sealing is not to do with health or hygiene.  But has a UK court made that actual decision yet?

My original question and point was that the oft quoted legislation does not say that the reason for sealing must be hygiene or health related - and I still don't think it does.  I don't know what a court would say the wording used actually meant.

But how do you convince them that the goods can't be returned once a seal is broken due to hygiene concerns, when the purpose of the seal wasn't to preserve the integrity of the hygiene?

I don't need to convince anybody of anything.  Although I'm not quite sure why you persist in arguing that the regulation says something that it doesn't.

Yes - it says the goods must be sealed

Yes - it says the goods must not be returnable for health or hygiene reasons

But No - it does not say anywhere that the seal must be for the purposes of health or hygiene

My original question and the point I was making only related to the explicit wording of the exception, not what could or should be imputed or implied into it.  Although I'm a little surprised that if the government wanted it to mean what you say it means, that they didn't ensure it was drafted that way in the first place.  (On second thoughts, I'm not at all surprised).

unholyangel

Manxman_in_exile said:

unholyangel said:

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [Directive 2011/83] be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

And in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

You seem to be agreeing that the case you cited is not an authority as to why the goods have been sealed, but rather their nature?

It seems to me that you might be making a false inferential leap in the form of the syllogism:

      1.  The goods must have been sealed;

      2.   The goods must not be returnable for health or hygiene reasons;

      3.  Therefore the goods must also have been sealed for health or hygiene reasons.

I don't see that it necessarily follows.

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. 

Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [Directive 2011/83] be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

And in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

So the decision is about mattresses, not about how they are packaged.

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. 

If the goods were not sealed for the purpose of preserving their hygiene, how can breaking that seal deprive them of any hygiene protection? 

Which is a roundabout way of saying (or perhaps trying not to say) that the decision has nothing to do with how goods are packaged/sealed, it is about whether mattresses are products for which health/hygiene concerns apply.
It is perfectly possible for a seal, deliberately or not, to fulfil multiple roles. Why were some DVDs sold wrapped in cellophane or similar, was that for health/hygiene purposes? Irrespective of its primary purpose, if you wanted to be able to show that someone else hadn’t touched the DVD itself, would the presence of unbroken cellophane nevertheless help you do that?

unholyangel

I forgot the CJEU do theirs a little differently. That's the AG's take on it. 

44.      In that regard, I consider, as put forward, in essence, by slewo, (39) the Belgian Government (40) and the Commission, that it is strictly necessary to take account of the purpose that the ‘seals’ may be expected to serve within the meaning of Article 16(e). The aim of that provision is, in my opinion, to exclude from the right of withdrawal all goods which must be sealed due to health protection and hygiene reasons, and thus to prevent the consumer from returning such goods to the trader, because once those goods have been removed from their protective packaging, they suffer irremediable loss of value in terms of guaranteeing health or hygiene, with the result that they cannot be resold. (41)

45.      I therefore take the view that for a protective coating to be considered ‘sealed’ within the meaning of the provision, it must reliably guarantee the cleanliness of the product it contains. That criterion presupposes that the packaging is strong enough to protect it and that it cannot be opened without visibly damaging it, so that it is evident if the article in question has been tested or tried on by the consumer. By way of an example, a sealed plastic or foil film which would thus be impossible to return in its original condition if opened voluntarily would satisfy those conditions.

Manxman_in_exile

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(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 answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Manxman_in_exile

unholyangel said:

I forgot the CJEU do theirs a little differently. That's the AG's take on it. 

44.      In that regard, I consider, as put forward, in essence, by slewo, (39) the Belgian Government (40) and the Commission, that it is strictly necessary to take account of the purpose that the ‘seals’ may be expected to serve within the meaning of Article 16(e). The aim of that provision is, in my opinion, to exclude from the right of withdrawal all goods which must be sealed due to health protection and hygiene reasons, and thus to prevent the consumer from returning such goods to the trader, because once those goods have been removed from their protective packaging, they suffer irremediable loss of value in terms of guaranteeing health or hygiene, with the result that they cannot be resold. (41)

45.      I therefore take the view that for a protective coating to be considered ‘sealed’ within the meaning of the provision, it must reliably guarantee the cleanliness of the product it contains. That criterion presupposes that the packaging is strong enough to protect it and that it cannot be opened without visibly damaging it, so that it is evident if the article in question has been tested or tried on by the consumer. By way of an example, a sealed plastic or foil film which would thus be impossible to return in its original condition if opened voluntarily would satisfy those conditions.

Am I right to take it that that means that the reason for sealing the goods has to be implied into ("it is strictly necessary to take account of the purpose... ") the wording of the article/statute/regulation because the actual wording itself does not, on the face of it, explicitly require it?

Are european court decisions still binding or merely persuasive or indicative?