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wrong address - have to pay return fees

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  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    edited 10 November 2021 at 11:11AM
    Well, I disagree and consider that if the consumer has provided delivery details then they have effectively identified a person at the given address, whether or not that person is the correct person or indeed exists. I can't find any reference that backs-up your assertion that following the instructions of a consumer is at the retailer's risk and, as I believe was pointed out by another poster, I very much doubt that a judge would interpret the law in the way you suggest. To me, if a retailer provides a delivery in accordance with the details provided by a customer then it has logically fulfilled its obligations.

    If the legislation drafters/parliament had meant for the consumer rights act to undermine delivery systems used for decades (or, in the case of envelopes through the post, over a century), then i consider it would have been made explicitly clear in the legislation that delivery convention was being upended (and a retailer could only fulfil their obligations by requiring the purchaser to upload an up-to-date photo of the named recipient and for that specific person to be present at the time of delivery). Practically, however, if a customer has nominated a recipient that is wrong or doesn't exist that is unfortunate but it is not the retailer's fault, and I do not believe that the legislation was intended to compel retailers to refund or despatch duplicate orders where a first was delivered as instructed by a customer. A retailer has no way of ensuring whether a person is to be found at a particular address or not, that obligation logically rests on the customer's shoulders.

    The interpretation you are proposing is also problematic because it could, in effect, facilitate crime (e.g. someone deliberately trying to obtain multiple items for the price of one). If a reasonable interpretation that avoids facilitating crime were possible (which i believe would be the case if the purchaser were accepted to be responsible for the accuracy of delivery details), then I consider that a judge would be somewhat unlikely to find in favour of an interpretation that facilitates crime.

    Moreover, if a customer tried to bring a court claim on the basis of the consumer rights act despite having given incorrect details, then I consider that the retailer would be well within its rights to counter-sue the purchaser for any resulting loss/damage associated with the misdelivery. I also consider that if a customer had indeed provided incorrect details (or had negligently not checked details) then a judge would be very likely to find in favour of the retailer. So, even if the consumer rights act were to be interpreted as you suggest, I consider that under civil law the purchaser would nevertheless be liable for additional costs associated with any misdirected delivery.

    So, either way, I do not agree that the retailer unambiguously has the responsibilities that you suggest and that a purchaser can effectively give any details they like without jeopardy, and I consider that constantly asserting that is the case could potentially (unintentionally) mislead people.


    Oh they meant it. Look at their word choice. 
    (2)The goods remain at the trader’s risk until they come into the physical possession of—
    (a)the consumer, or
    (b)a person identified by the consumer to take possession of the goods.

    If, as you suggest, they wanted it to pass when it was delivered to an address.....then why include the parts in bold? Why not just say risk passes when it is delivered to the nominated address? 

    As for facilitating crime, you're being ridiculous. If my car is damaged, the law gives me the right to claim for that damage. But if i make a false representation which I know/should reasonably know to be false with a view to profiting/causing another a loss then I would be committing fraud. Just as it would be fraud to claim to not receive a parcel you did receive. 


    As for countersuing.....for what? The cost of delivery was not caused by the breach. It was a cost they would incur regardless of whether any alleged breach happened or not. They can't even claim loss of profit in most circumstances as they still have the goods and the consumer would have had the right to cancel anyway. The delivery cost is simply an overhead of distance selling, the same way rent is for high street. They would also need to demonstrate negligence. Making a mistake doesn't necessarily make you negligent and (as my earlier post alluded to) there's no doubt the retailer have at least some of the liability because the original cause stems from their software (there can be mutiple "causes" to a loss, concurrent, successive etc). 

     
    I have looked at the word choice thanks and I still do not think it is as clear cut as you suggest. For example, if the drafting was considered so carefully then why does clause 2(a) refer to "a" person rather than "the" person? If a consumer can only nominate an individual whom should then be the unique permitted destination for the goods it should logically say "the" person nominated rather than "a", but it doesn't. I'm sure you'll accuse me of being ridiculous but that's just one example of how drafting legislation is not necessarily straightforward. Further, more broadly, it is simply possible that the drafters made an error of judgement and did not consider the potential consequences of particular wording. It would certainly not be the first example of badly drafted legislation. Regarding why they didn't use the term 'address', I think that was likely to try and guard against instances of a delivery being left outside and stolen etc., I am doubtful that it was any more complicated than that.

    I am not clear what the point is that you think you are making about your car, but I will point out that I did say facilitating rather than cause, and the situation queried by 'diinozzo' and the ensuing comments by 'the lunatic is in my head' are very apt examples of how crime could be facilitated.

    As for being ridiculous well, to me, allowing the situation described by 'diinozzo' and further elucidated by 'the lunatic is in my head' would be ridiculous. If a consumer were to have an item delivered in their own name to their MIL's house but they fell out so the MIL didn't  hand it over then the delivery would apparently not be complete and the retailer would be liable, whereas if, for exactly the same order on the same day, the name used by the consumer had instead been the MIL's name (again at her house) then the delivery would be considered to be complete. Do you really not think that outcome would be somewhat preposterous?

    Regarding countersuing, how about the cost of redelivery and/or loss related to the value of goods in circumstances where they are lost as a consequence of misdelivery? Depending on the goods redelivery itself could potentially be fairly expensive.

    Lastly, I disagree with your statement that 'there is no doubt the retailer has at least some of the liability because the original cause stems from their software'. I really do not see that that is definitely the case and your characterisation doesn't accord with my experience of online forms and postcode checkers. Moreover, such a point would be for a judge to decide after hearing all the evidence.

    As above, the person indicates there is only one and that a third party needs to be identified. A person means there could be more than one and that there's no requirement to name a third party. You're asking why they chose a rather than the, simply because of correct use of the language. 

    As for the lawmakers, the EU (who wrote the law which we then transposed into UK law) provided guidance. And that guidance says:
    Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20

    and article 20 is: 
    In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier

    What we're saying may seem "out there" to you, but if you understand other principles of law, it makes sense. For example the law considers you can only have liability for something within your control. Likewise with agency, you can only assign rights (and can only assign rights you actually have) and cannot assign an obligation. The way the act is written, it balances the risk between both parties and makes each responsible for the goods while the goods are in their physical possessin or the possession of a third party chosen by them (for example the courier hired by the retailer or a person identified by the consumer). Who has control over the delivery procedures (how deliver is made, when it is made, who makes the delivery and who they deliver the goods to) and over the goods themselves? THAT is why risk passes only on physical possession.   

    Just as the consumer agrees to give the consideration to the retailer, the retailer agrees to give consideration to the consumer. Pretty sure no retailer would consider they have received the sums if they were left outside their premises or delivered to a neighbour or just a random person who happened to be at the address when the money was delivered.....why should they then be allowed to do a 180 when the shoe is on the other foot? 

    If traders want the benefit of having low cost delivery, they need to be prepared to accept the risks too. They can't just cherry pick the benefits and disclaim liability for the problems created by their choices. 

    As for countersuing.....if the OP cancels then there is no cost of redelivery. And they can't sue for loss where they were misdelivered because the goods remain at their risk until they enter the physical possession of the consumer! Strictly speaking, in that situation the loss was not caused by the consumer giving the wrong information but the retailer (or their agent) being negligent and giving the goods to someone not authorised to receive them (no different to them just handing the parcel to a stranger passing on the street). The retailer may be able to take action against the person it WAS delivered to, but not the consumer. Again, it's within the retailer's control therefore the law (not just the CRA) supports them retaining liability. 


    You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride
  • sheramber
    sheramber Posts: 22,467 Forumite
    Part of the Furniture 10,000 Posts I've been Money Tipped! Name Dropper
    I ordered from online4baby and DPD could not deliver due to not finding the address. They are now resending the package back to the sender

    The courier did  not deliver it to the wrong person/address. The courier returned the parcel to retailer so it is not lost. 

    The OP got free delivery on the order but now the retailer intends to charge for a second delivery. However, he also intends to deduct a delivery charge   from a refund.
  • Well, I disagree and consider that if the consumer has provided delivery details then they have effectively identified a person at the given address, whether or not that person is the correct person or indeed exists. I can't find any reference that backs-up your assertion that following the instructions of a consumer is at the retailer's risk and, as I believe was pointed out by another poster, I very much doubt that a judge would interpret the law in the way you suggest. To me, if a retailer provides a delivery in accordance with the details provided by a customer then it has logically fulfilled its obligations.

    If the legislation drafters/parliament had meant for the consumer rights act to undermine delivery systems used for decades (or, in the case of envelopes through the post, over a century), then i consider it would have been made explicitly clear in the legislation that delivery convention was being upended (and a retailer could only fulfil their obligations by requiring the purchaser to upload an up-to-date photo of the named recipient and for that specific person to be present at the time of delivery). Practically, however, if a customer has nominated a recipient that is wrong or doesn't exist that is unfortunate but it is not the retailer's fault, and I do not believe that the legislation was intended to compel retailers to refund or despatch duplicate orders where a first was delivered as instructed by a customer. A retailer has no way of ensuring whether a person is to be found at a particular address or not, that obligation logically rests on the customer's shoulders.

    The interpretation you are proposing is also problematic because it could, in effect, facilitate crime (e.g. someone deliberately trying to obtain multiple items for the price of one). If a reasonable interpretation that avoids facilitating crime were possible (which i believe would be the case if the purchaser were accepted to be responsible for the accuracy of delivery details), then I consider that a judge would be somewhat unlikely to find in favour of an interpretation that facilitates crime.

    Moreover, if a customer tried to bring a court claim on the basis of the consumer rights act despite having given incorrect details, then I consider that the retailer would be well within its rights to counter-sue the purchaser for any resulting loss/damage associated with the misdelivery. I also consider that if a customer had indeed provided incorrect details (or had negligently not checked details) then a judge would be very likely to find in favour of the retailer. So, even if the consumer rights act were to be interpreted as you suggest, I consider that under civil law the purchaser would nevertheless be liable for additional costs associated with any misdirected delivery.

    So, either way, I do not agree that the retailer unambiguously has the responsibilities that you suggest and that a purchaser can effectively give any details they like without jeopardy, and I consider that constantly asserting that is the case could potentially (unintentionally) mislead people.


    Oh they meant it. Look at their word choice. 
    (2)The goods remain at the trader’s risk until they come into the physical possession of—
    (a)the consumer, or
    (b)a person identified by the consumer to take possession of the goods.

    If, as you suggest, they wanted it to pass when it was delivered to an address.....then why include the parts in bold? Why not just say risk passes when it is delivered to the nominated address? 

    As for facilitating crime, you're being ridiculous. If my car is damaged, the law gives me the right to claim for that damage. But if i make a false representation which I know/should reasonably know to be false with a view to profiting/causing another a loss then I would be committing fraud. Just as it would be fraud to claim to not receive a parcel you did receive. 


    As for countersuing.....for what? The cost of delivery was not caused by the breach. It was a cost they would incur regardless of whether any alleged breach happened or not. They can't even claim loss of profit in most circumstances as they still have the goods and the consumer would have had the right to cancel anyway. The delivery cost is simply an overhead of distance selling, the same way rent is for high street. They would also need to demonstrate negligence. Making a mistake doesn't necessarily make you negligent and (as my earlier post alluded to) there's no doubt the retailer have at least some of the liability because the original cause stems from their software (there can be mutiple "causes" to a loss, concurrent, successive etc). 

     
    I have looked at the word choice thanks and I still do not think it is as clear cut as you suggest. For example, if the drafting was considered so carefully then why does clause 2(a) refer to "a" person rather than "the" person? If a consumer can only nominate an individual whom should then be the unique permitted destination for the goods it should logically say "the" person nominated rather than "a", but it doesn't. I'm sure you'll accuse me of being ridiculous but that's just one example of how drafting legislation is not necessarily straightforward. Further, more broadly, it is simply possible that the drafters made an error of judgement and did not consider the potential consequences of particular wording. It would certainly not be the first example of badly drafted legislation. Regarding why they didn't use the term 'address', I think that was likely to try and guard against instances of a delivery being left outside and stolen etc., I am doubtful that it was any more complicated than that.

    I am not clear what the point is that you think you are making about your car, but I will point out that I did say facilitating rather than cause, and the situation queried by 'diinozzo' and the ensuing comments by 'the lunatic is in my head' are very apt examples of how crime could be facilitated.

    As for being ridiculous well, to me, allowing the situation described by 'diinozzo' and further elucidated by 'the lunatic is in my head' would be ridiculous. If a consumer were to have an item delivered in their own name to their MIL's house but they fell out so the MIL didn't  hand it over then the delivery would apparently not be complete and the retailer would be liable, whereas if, for exactly the same order on the same day, the name used by the consumer had instead been the MIL's name (again at her house) then the delivery would be considered to be complete. Do you really not think that outcome would be somewhat preposterous?

    Regarding countersuing, how about the cost of redelivery and/or loss related to the value of goods in circumstances where they are lost as a consequence of misdelivery? Depending on the goods redelivery itself could potentially be fairly expensive.

    Lastly, I disagree with your statement that 'there is no doubt the retailer has at least some of the liability because the original cause stems from their software'. I really do not see that that is definitely the case and your characterisation doesn't accord with my experience of online forms and postcode checkers. Moreover, such a point would be for a judge to decide after hearing all the evidence.

    As above, the person indicates there is only one and that a third party needs to be identified. A person means there could be more than one and that there's no requirement to name a third party. You're asking why they chose a rather than the, simply because of correct use of the language. 

    As for the lawmakers, the EU (who wrote the law which we then transposed into UK law) provided guidance. And that guidance says:
    Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20

    and article 20 is: 
    In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier

    What we're saying may seem "out there" to you, but if you understand other principles of law, it makes sense. For example the law considers you can only have liability for something within your control. Likewise with agency, you can only assign rights (and can only assign rights you actually have) and cannot assign an obligation. The way the act is written, it balances the risk between both parties and makes each responsible for the goods while the goods are in their physical possessin or the possession of a third party chosen by them (for example the courier hired by the retailer or a person identified by the consumer). Who has control over the delivery procedures (how deliver is made, when it is made, who makes the delivery and who they deliver the goods to) and over the goods themselves? THAT is why risk passes only on physical possession.   

    Just as the consumer agrees to give the consideration to the retailer, the retailer agrees to give consideration to the consumer. Pretty sure no retailer would consider they have received the sums if they were left outside their premises or delivered to a neighbour or just a random person who happened to be at the address when the money was delivered.....why should they then be allowed to do a 180 when the shoe is on the other foot? 

    If traders want the benefit of having low cost delivery, they need to be prepared to accept the risks too. They can't just cherry pick the benefits and disclaim liability for the problems created by their choices. 

    As for countersuing.....if the OP cancels then there is no cost of redelivery. And they can't sue for loss where they were misdelivered because the goods remain at their risk until they enter the physical possession of the consumer! Strictly speaking, in that situation the loss was not caused by the consumer giving the wrong information but the retailer (or their agent) being negligent and giving the goods to someone not authorised to receive them (no different to them just handing the parcel to a stranger passing on the street). The retailer may be able to take action against the person it WAS delivered to, but not the consumer. Again, it's within the retailer's control therefore the law (not just the CRA) supports them retaining liability. 


    So if more than one person can be nominated by a consumer it is presumably not the case that only one unique natural person can be the correct end-point for the goods to be delivered; already that suggests more flexibility than has previously been suggested and is but one example of there being, in my view, potential ambiguity in the Act. Whether it be the EU or parliament, it is always possible that legislation was quite simply badly drafted, and a judge could come to a different conclusion to that of people on the internet (myself included).

     

    As for the lawmakers, interestingly Article 18 (which concerns delivery) of the relevant EU Directive (2011/83/EU) in fact states “1.  Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract.”. Now it appears that the term “or control” was for some reason not transposed into the UK Act, but to me this explicitly shows that the legislation drafters did in fact consider that it would be inappropriate to require goods to be physically delivered only to a named and verified person, despite what multiple posters have consistently claimed. So, in my view, even though you avoided the direct question I consider that this helps address Diinozzo’s (and my) query about circumstances such as having goods delivered in your own name to another person’s address. Rationally, ‘physical possession’ in such circumstances could be interpreted to include relevant ‘control’, and so if you had goods delivered to your MIL’s house but directed to yourself or a fake name, it would still be considered delivered. To me this is one of few ways that sense can prevail in possible circumstances which, otherwise (e.g. under the interpretation proposed by you and ‘the lunatic is in my head’), would frankly be quite ludicrous (and hence unlikely to be judged appropriate).

     

    Regarding your comment concerning consideration - they are not popular now but apparently people used to be able to pay for mail order goods by cheque and postal order and, though I have never shopped that way, I believe that they could be sent by post and addressed to (and received and opened) by businesses, not just natural persons, postmen didn’t require to see ID and businesses used to accept them as valid payment.

     

    It is more likely primarily consumers rather than retailers that want the benefit of low cost delivery. If retailers’ costs were to increase as a consequence of legislation I think it is somewhat naïve to believe that cost would not be passed on to consumers.

     

    This leaves the issue of the provision of a wrong address and, on balance, if a more reasonable interpretation is indeed possible in circumstances relating to using addresses of convenience (e.g. your MIL’s house or a workplace), I am more inclined to consider that goods delivered to a mistakenly wrong address would likely not be deemed to be in control/possession of the consumer and so would not be considered to be delivered. This said, I do not in any way agree with your opinion on the viability of a retailer being able to sue a consumer if they were to cause loss/damage to the retailer by negligently providing incorrect details. If I cross the road it is at my risk but other road users still owe me a duty of care (and I them) not to increase the dangers involved. Accordingly, even if goods were to remain at a retailer’s risk until such a time as they were considered to be in control of the consumer, I do not see why that means the consumer does not owe a duty of care to the retailer regarding the appropriateness of the details provided. On the contrary, a trader is putting its goods at risk following the instructions of the consumer and so I believe such a duty of care nevertheless does exist, and hence if any loss/damage were to be caused to the retailer by virtue of the provision of misinformation by a consumer then I do not see why the retailer would be unable to take legal action to seek redress. Though it would, of course, be for a judge to decide, I consider that there would be a very good argument that the consumer was at least contributorily negligent.


  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    edited 10 November 2021 at 5:21PM
    Well, I disagree and consider that if the consumer has provided delivery details then they have effectively identified a person at the given address, whether or not that person is the correct person or indeed exists. I can't find any reference that backs-up your assertion that following the instructions of a consumer is at the retailer's risk and, as I believe was pointed out by another poster, I very much doubt that a judge would interpret the law in the way you suggest. To me, if a retailer provides a delivery in accordance with the details provided by a customer then it has logically fulfilled its obligations.

    If the legislation drafters/parliament had meant for the consumer rights act to undermine delivery systems used for decades (or, in the case of envelopes through the post, over a century), then i consider it would have been made explicitly clear in the legislation that delivery convention was being upended (and a retailer could only fulfil their obligations by requiring the purchaser to upload an up-to-date photo of the named recipient and for that specific person to be present at the time of delivery). Practically, however, if a customer has nominated a recipient that is wrong or doesn't exist that is unfortunate but it is not the retailer's fault, and I do not believe that the legislation was intended to compel retailers to refund or despatch duplicate orders where a first was delivered as instructed by a customer. A retailer has no way of ensuring whether a person is to be found at a particular address or not, that obligation logically rests on the customer's shoulders.

    The interpretation you are proposing is also problematic because it could, in effect, facilitate crime (e.g. someone deliberately trying to obtain multiple items for the price of one). If a reasonable interpretation that avoids facilitating crime were possible (which i believe would be the case if the purchaser were accepted to be responsible for the accuracy of delivery details), then I consider that a judge would be somewhat unlikely to find in favour of an interpretation that facilitates crime.

    Moreover, if a customer tried to bring a court claim on the basis of the consumer rights act despite having given incorrect details, then I consider that the retailer would be well within its rights to counter-sue the purchaser for any resulting loss/damage associated with the misdelivery. I also consider that if a customer had indeed provided incorrect details (or had negligently not checked details) then a judge would be very likely to find in favour of the retailer. So, even if the consumer rights act were to be interpreted as you suggest, I consider that under civil law the purchaser would nevertheless be liable for additional costs associated with any misdirected delivery.

    So, either way, I do not agree that the retailer unambiguously has the responsibilities that you suggest and that a purchaser can effectively give any details they like without jeopardy, and I consider that constantly asserting that is the case could potentially (unintentionally) mislead people.


    Oh they meant it. Look at their word choice. 
    (2)The goods remain at the trader’s risk until they come into the physical possession of—
    (a)the consumer, or
    (b)a person identified by the consumer to take possession of the goods.

    If, as you suggest, they wanted it to pass when it was delivered to an address.....then why include the parts in bold? Why not just say risk passes when it is delivered to the nominated address? 

    As for facilitating crime, you're being ridiculous. If my car is damaged, the law gives me the right to claim for that damage. But if i make a false representation which I know/should reasonably know to be false with a view to profiting/causing another a loss then I would be committing fraud. Just as it would be fraud to claim to not receive a parcel you did receive. 


    As for countersuing.....for what? The cost of delivery was not caused by the breach. It was a cost they would incur regardless of whether any alleged breach happened or not. They can't even claim loss of profit in most circumstances as they still have the goods and the consumer would have had the right to cancel anyway. The delivery cost is simply an overhead of distance selling, the same way rent is for high street. They would also need to demonstrate negligence. Making a mistake doesn't necessarily make you negligent and (as my earlier post alluded to) there's no doubt the retailer have at least some of the liability because the original cause stems from their software (there can be mutiple "causes" to a loss, concurrent, successive etc). 

     
    I have looked at the word choice thanks and I still do not think it is as clear cut as you suggest. For example, if the drafting was considered so carefully then why does clause 2(a) refer to "a" person rather than "the" person? If a consumer can only nominate an individual whom should then be the unique permitted destination for the goods it should logically say "the" person nominated rather than "a", but it doesn't. I'm sure you'll accuse me of being ridiculous but that's just one example of how drafting legislation is not necessarily straightforward. Further, more broadly, it is simply possible that the drafters made an error of judgement and did not consider the potential consequences of particular wording. It would certainly not be the first example of badly drafted legislation. Regarding why they didn't use the term 'address', I think that was likely to try and guard against instances of a delivery being left outside and stolen etc., I am doubtful that it was any more complicated than that.

    I am not clear what the point is that you think you are making about your car, but I will point out that I did say facilitating rather than cause, and the situation queried by 'diinozzo' and the ensuing comments by 'the lunatic is in my head' are very apt examples of how crime could be facilitated.

    As for being ridiculous well, to me, allowing the situation described by 'diinozzo' and further elucidated by 'the lunatic is in my head' would be ridiculous. If a consumer were to have an item delivered in their own name to their MIL's house but they fell out so the MIL didn't  hand it over then the delivery would apparently not be complete and the retailer would be liable, whereas if, for exactly the same order on the same day, the name used by the consumer had instead been the MIL's name (again at her house) then the delivery would be considered to be complete. Do you really not think that outcome would be somewhat preposterous?

    Regarding countersuing, how about the cost of redelivery and/or loss related to the value of goods in circumstances where they are lost as a consequence of misdelivery? Depending on the goods redelivery itself could potentially be fairly expensive.

    Lastly, I disagree with your statement that 'there is no doubt the retailer has at least some of the liability because the original cause stems from their software'. I really do not see that that is definitely the case and your characterisation doesn't accord with my experience of online forms and postcode checkers. Moreover, such a point would be for a judge to decide after hearing all the evidence.

    As above, the person indicates there is only one and that a third party needs to be identified. A person means there could be more than one and that there's no requirement to name a third party. You're asking why they chose a rather than the, simply because of correct use of the language. 

    As for the lawmakers, the EU (who wrote the law which we then transposed into UK law) provided guidance. And that guidance says:
    Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20

    and article 20 is: 
    In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier

    What we're saying may seem "out there" to you, but if you understand other principles of law, it makes sense. For example the law considers you can only have liability for something within your control. Likewise with agency, you can only assign rights (and can only assign rights you actually have) and cannot assign an obligation. The way the act is written, it balances the risk between both parties and makes each responsible for the goods while the goods are in their physical possessin or the possession of a third party chosen by them (for example the courier hired by the retailer or a person identified by the consumer). Who has control over the delivery procedures (how deliver is made, when it is made, who makes the delivery and who they deliver the goods to) and over the goods themselves? THAT is why risk passes only on physical possession.   

    Just as the consumer agrees to give the consideration to the retailer, the retailer agrees to give consideration to the consumer. Pretty sure no retailer would consider they have received the sums if they were left outside their premises or delivered to a neighbour or just a random person who happened to be at the address when the money was delivered.....why should they then be allowed to do a 180 when the shoe is on the other foot? 

    If traders want the benefit of having low cost delivery, they need to be prepared to accept the risks too. They can't just cherry pick the benefits and disclaim liability for the problems created by their choices. 

    As for countersuing.....if the OP cancels then there is no cost of redelivery. And they can't sue for loss where they were misdelivered because the goods remain at their risk until they enter the physical possession of the consumer! Strictly speaking, in that situation the loss was not caused by the consumer giving the wrong information but the retailer (or their agent) being negligent and giving the goods to someone not authorised to receive them (no different to them just handing the parcel to a stranger passing on the street). The retailer may be able to take action against the person it WAS delivered to, but not the consumer. Again, it's within the retailer's control therefore the law (not just the CRA) supports them retaining liability. 


    So if more than one person can be nominated by a consumer it is presumably not the case that only one unique natural person can be the correct end-point for the goods to be delivered; already that suggests more flexibility than has previously been suggested and is but one example of there being, in my view, potential ambiguity in the Act. Whether it be the EU or parliament, it is always possible that legislation was quite simply badly drafted, and a judge could come to a different conclusion to that of people on the internet (myself included).

     

    As for the lawmakers, interestingly Article 18 (which concerns delivery) of the relevant EU Directive (2011/83/EU) in fact states “1.  Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract.”. Now it appears that the term “or control” was for some reason not transposed into the UK Act, but to me this explicitly shows that the legislation drafters did in fact consider that it would be inappropriate to require goods to be physically delivered only to a named and verified person, despite what multiple posters have consistently claimed. So, in my view, even though you avoided the direct question I consider that this helps address Diinozzo’s (and my) query about circumstances such as having goods delivered in your own name to another person’s address. Rationally, ‘physical possession’ in such circumstances could be interpreted to include relevant ‘control’, and so if you had goods delivered to your MIL’s house but directed to yourself or a fake name, it would still be considered delivered. To me this is one of few ways that sense can prevail in possible circumstances which, otherwise (e.g. under the interpretation proposed by you and ‘the lunatic is in my head’), would frankly be quite ludicrous (and hence unlikely to be judged appropriate).

     

    Regarding your comment concerning consideration - they are not popular now but apparently people used to be able to pay for mail order goods by cheque and postal order and, though I have never shopped that way, I believe that they could be sent by post and addressed to (and received and opened) by businesses, not just natural persons, postmen didn’t require to see ID and businesses used to accept them as valid payment.

     

    It is more likely primarily consumers rather than retailers that want the benefit of low cost delivery. If retailers’ costs were to increase as a consequence of legislation I think it is somewhat naïve to believe that cost would not be passed on to consumers.

     

    This leaves the issue of the provision of a wrong address and, on balance, if a more reasonable interpretation is indeed possible in circumstances relating to using addresses of convenience (e.g. your MIL’s house or a workplace), I am more inclined to consider that goods delivered to a mistakenly wrong address would likely not be deemed to be in control/possession of the consumer and so would not be considered to be delivered. This said, I do not in any way agree with your opinion on the viability of a retailer being able to sue a consumer if they were to cause loss/damage to the retailer by negligently providing incorrect details. If I cross the road it is at my risk but other road users still owe me a duty of care (and I them) not to increase the dangers involved. Accordingly, even if goods were to remain at a retailer’s risk until such a time as they were considered to be in control of the consumer, I do not see why that means the consumer does not owe a duty of care to the retailer regarding the appropriateness of the details provided. On the contrary, a trader is putting its goods at risk following the instructions of the consumer and so I believe such a duty of care nevertheless does exist, and hence if any loss/damage were to be caused to the retailer by virtue of the provision of misinformation by a consumer then I do not see why the retailer would be unable to take legal action to seek redress. Though it would, of course, be for a judge to decide, I consider that there would be a very good argument that the consumer was at least contributorily negligent.


    Yes it is the case that one uniquely identifiable person can be the correct end point, if the consumer does not identify any other individual/s who are authorised to receive it. 

    Article 18 refers to the period for performance/time for delivery, not the passing of risk (passing of risk is determined by article 20). You're also still not grasping the importance of being able to exercise control in order to be liable. It is not saying delivery does not have to be made to a person. It is saying (for example) that if a consumer contracts their own courier, the trader is still under an obligation to "deliver" those goods to the consumer's courier within 30 days (unless another time is agreed, in which case within the agreed time). As the courier are an agent of the consumer's, they are within the control of the consumer. Therefore when the goods are passed to them, so too does the risk (because again, liability follows who has control). 

    As for the consideration/cheques...you''re missing the point. If the cheque was delivered by mistake to their neighbour, or was handed to a random person in the building (not an employee, as employees are agents of the company/business), do you think the retailer would consider the consumer had met their obligation (in paying what was agreed to be paid)? Do you think the retailer would do the leg work in chasing their neighbour or tracking the random? Or do you think the retailer would advise the consumer to cancel the cheque and resend because it's the consumers obligation to ensure the funds reach them? 


    Again, making a mistake does not make you negligent. And nor did I say the consumer can be negligent with impunity. Just that the argument that the customer would be liable because a mistake made by the retailer (since the software is within their control)  was repeated by them is not quite the "ah ha! gotcha!" that you seem to think it is. The retailer would have to prove negligence. I'd find it quite enjoyable to listen to a retailer try to argue the consumer is 100% liable for mistakes made by the retailer's software merely because the consumer didn't notice the mistake. So making the mistake isn't negligence, but someone else failing to correct your mistake is? Also, if the retailer is carrying out their obligation with reasonable care and skill, there is no risk to the goods. Not unless the retailer fails to ensure they're delivering to the right person (which actually puts the goods at risk irrespective of whether the address is right or not, hence why it's caused by the retailers failure rather than the incorrect address). 
    You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride
  • Manxman_in_exile
    Manxman_in_exile Posts: 8,380 Forumite
    Eighth Anniversary 1,000 Posts Name Dropper
    edited 10 November 2021 at 5:47PM
    @unholyangel - just for my own better understanding (and clarification!) are you saying that the legal position quite clearly is that the goods remain the responsibility of the retailer until they have been delivered into the physical possession of the consumer etc etc - even when the consumer has supplied to the retailer a wrong address that makes it impossible for the retailer to deliver the goods to them?

    As I suggested in an earlier post, I find it hard to believe that that was the intention of either Parliament or the EU.  I'd have thought it far more likely that the possiblility of the consumer giving the wrong address was never contemplated rather than it had been and it was decided that the retailer should retain the risk.

    Apart from - I would suggest - defying common sense, isn't it also contrary to one of the points you make yourself?


    What we're saying may seem "out there" to you, but if you understand other principles of law, it makes sense. For example the law considers you can only have liability for something within your control...

    I hope I haven't taken that out of context, but I don't see how the law can consider the retailer to be responsible for the consumer supplying the wrong address to them.  Surely supplying the address is wholly within the control of the consumer and not the retailer?  Only the consumer knows where they want the goods to be delivered, do they have no responsibility for supplying the correct address?
  • Jenni_D
    Jenni_D Posts: 5,430 Forumite
    1,000 Posts Fourth Anniversary Name Dropper Photogenic
    I think she's saying - it depends. If the wrong address was due to the seller's system then that's under the seller's control, so their risk.

    If the consumer had entered the wrong address then I can see your point.
    Jenni x
  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    @unholyangel - just for my own better understanding (and clarification!) are you saying that the legal position quite clearly is that the goods remain the responsibility of the retailer until they have been delivered into the physical possession of the consumer etc etc - even when the consumer has supplied to the retailer a wrong address that makes it impossible for the retailer to deliver the goods to them?

    As I suggested in an earlier post, I find it hard to believe that that was the intention of either Parliament or the EU.  I'd have thought it far more likely that the possiblility of the consumer giving the wrong address was never contemplated rather than it had been and it was decided that the retailer should retain the risk.

    Apart from - I would suggest - defying common sense, isn't it also contrary to one of the points you make yourself?


    What we're saying may seem "out there" to you, but if you understand other principles of law, it makes sense. For example the law considers you can only have liability for something within your control...

    I hope I haven't taken that out of context, but I don't see how the law can consider the retailer to be responsible for the consumer supplying the wrong address to them.  Surely supplying the address is wholly within the control of the consumer and not the retailer?  Only the consumer knows where they want the goods to be delivered, do they have no responsibility for supplying the correct address?
    Of course. Why would an incorrect address change where the risk (for loss or damage) lies? If the goods are lost or damaged via transit.....what relevance does an incorrect address have? It didn't cause the retailer to lose/damage the item. Likewise if the retailer delivers them to the wrong person, whether it is at an incorrect address is irrelevant when it comes to the passing of risk because (as per my previous) it didn't actually cause the loss. 

    age verification or contract mobile phones normally require ID to be shown. So it's not that it can't be done, it's just that it's cheaper and more convenient not to. Businesses (at least ones that are run properly) cost these things (failure rates, loss/damage, bad debt etc) into their products. Reminds me of the adage fail to prepare, prepare to fail! 

    Again we're back to "who supplied the incorrect address?". Did the consumer actually provide the address? Or did they merely provide a door number and postcode, for which the retailers own software provided an incorrect address? If the retailer hadn't provided faulty software then there was no failure on their part (although it would still need an identifiable and quantifiable loss that was caused as a result of the consumers mistake and also that they'd been negligent in making the mistake, for the retailer to have any claim against the consumer). However, that is not the case in this instance. A consumer can provide the correct delivery address and then cancel, the retailer will still be out of pocket the delivery costs. Furthermore, who decides if an address is correct or incorrect? At what point does an address become incorrect? What if a property had been split into 4a and 4b but nothing officially updated? Is the correct address 4a? Or 4? Do you need to include just street address? Or town/city and district too? What about country? Most would probably accept RM's version as correct. But experience has taught me that very rarely will someone give their address exactly as it is in RM format. Does that then mean they've been negligent and if the retailer delivers to a neighbour or puts it in a (not so) safe place, that they can disclaim liability? 

    You see where I'm going with this (and also why I'd enjoy listening to a retailer trying to make that argument)? 
    You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride
  • @unholyangel - ok, I'm just trying to keep it as simple as possible    :)

    If I'm reading you correctly, I don't believe you think it matters where a wrong address may have come from.  It's irrelevant whether it has arisen as a result of an error by the consumer or some fault in the address look-up the retailer is using.  Or, indeed, as a result of some other weird reason - none of it matters.

    All that matters is that the relevant legislation says that risk only passes when goods have been delivered into the physical possession of the consumer (or etc etc...) and makes no mention of any address - correct or otherwise.  So the law says delivery must be to a person and not a place.

    So if the goods aren't - for whatever reason - delivered into the hands of the consumer, risk cannot pass from the retailer, and that remains case even if the consumer has given the wrong delivery address to the retailer? 


  • Again we're back to "who supplied the incorrect address?". Did the consumer actually provide the address? Or did they merely provide a door number and postcode, for which the retailers own software provided an incorrect address? If the retailer hadn't provided faulty software then there was no failure on their part (although it would still need an identifiable and quantifiable loss that was caused as a result of the consumers mistake and also that they'd been negligent in making the mistake, for the retailer to have any claim against the consumer). However, that is not the case in this instance. A consumer can provide the correct delivery address and then cancel, the retailer will still be out of pocket the delivery costs. Furthermore, who decides if an address is correct or incorrect? At what point does an address become incorrect? What if a property had been split into 4a and 4b but nothing officially updated? Is the correct address 4a? Or 4? Do you need to include just street address? Or town/city and district too? What about country? Most would probably accept RM's version as correct. But experience has taught me that very rarely will someone give their address exactly as it is in RM format. Does that then mean they've been negligent and if the retailer delivers to a neighbour or puts it in a (not so) safe place, that they can disclaim liability? 

    You see where I'm going with this (and also why I'd enjoy listening to a retailer trying to make that argument)? 
    I'm not really interested in where you are going with this or in splitting hairs around grey areas like what does or does not constitute a correct or an incorrect address.  

    What I'm interested in is the entirely black or white question of what the correct interpretation of the law is where the consumer has given the retailer an address which everybody can plainly agree is wrong.




  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    @unholyangel - ok, I'm just trying to keep it as simple as possible    :)

    If I'm reading you correctly, I don't believe you think it matters where a wrong address may have come from.  It's irrelevant whether it has arisen as a result of an error by the consumer or some fault in the address look-up the retailer is using.  Or, indeed, as a result of some other weird reason - none of it matters.

    All that matters is that the relevant legislation says that risk only passes when goods have been delivered into the physical possession of the consumer (or etc etc...) and makes no mention of any address - correct or otherwise.  So the law says delivery must be to a person and not a place.

    So if the goods aren't - for whatever reason - delivered into the hands of the consumer, risk cannot pass from the retailer, and that remains case even if the consumer has given the wrong delivery address to the retailer? 


    Again we're back to "who supplied the incorrect address?". Did the consumer actually provide the address? Or did they merely provide a door number and postcode, for which the retailers own software provided an incorrect address? If the retailer hadn't provided faulty software then there was no failure on their part (although it would still need an identifiable and quantifiable loss that was caused as a result of the consumers mistake and also that they'd been negligent in making the mistake, for the retailer to have any claim against the consumer). However, that is not the case in this instance. A consumer can provide the correct delivery address and then cancel, the retailer will still be out of pocket the delivery costs. Furthermore, who decides if an address is correct or incorrect? At what point does an address become incorrect? What if a property had been split into 4a and 4b but nothing officially updated? Is the correct address 4a? Or 4? Do you need to include just street address? Or town/city and district too? What about country? Most would probably accept RM's version as correct. But experience has taught me that very rarely will someone give their address exactly as it is in RM format. Does that then mean they've been negligent and if the retailer delivers to a neighbour or puts it in a (not so) safe place, that they can disclaim liability? 

    You see where I'm going with this (and also why I'd enjoy listening to a retailer trying to make that argument)? 
    I'm not really interested in where you are going with this or in splitting hairs around grey areas like what does or does not constitute a correct or an incorrect address.  

    What I'm interested in is the entirely black or white question of what the correct interpretation of the law is where the consumer has given the retailer an address which everybody can plainly agree is wrong.




    Well my answer to the latter would be, why would the interpretation of the law change because the customer has given the retailer an incorrect adress? The passing of risk is liability for damage/loss occurring to the goods. It is not a passing of all liability for all mistakes or negligence. The two matters are distinctly separate. 

    How does giving an incorrect address cause the goods to be lost or damaged? Who was the party who had control over the goods (ie who made the decision to hand over the goods to another party/leave it in a "safe" place or to use a carrier/service who don't check the identity of the receiver is the right one)? The goods could just as easily have been lost or damaged had a correct address been provided. Because the causation is the retailer/their agent not checking and not the accuracy of the address. 

    The law is all about splitting hairs around grey areas unfortunately. 

    As for the former....as far as passing of risk under consumer contracts, no. An incorrect address doesn't matter (because as above, two distinctly separate matters). 

    You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride
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