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wrong address - have to pay return fees
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Parking_Eyerate said:Parking_Eyerate said:Parking_Eyerate said:Parking_Eyerate said:unholyangel said:Parking_Eyerate said:unholyangel said:Parking_Eyerate said:unholyangel said:Parking_Eyerate said: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.(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 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.
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).Article 18 certainly discusses time periods but it is simply entitled ‘delivery’, not ‘time period for performance/delivery’. I can’t see why it is therefore inappropriate to say that it relates to delivery.I do understand the importance of being able to exercise control I just don’t agree with your interpretation of the law. ‘Control’ is clearly mentioned in Article 18 but notably not Article 20 and notably is not defined in the definition section of the regulation. I therefore do not agree that the use of the term ‘control’ in Article 18 only relates to, or necessarily has anything to do with, a consumer contracting their own courier. Were that the case then I consider that the term ‘control’ would have been used in Article 20.As for cheques and postal orders, I don’t understand what point you are trying to make. I have never said that delivery to the wrong building etc when the correct details have been provided by a consumer would be the consumer’s problem. When I have referred to a misdelivery I thought it was clear that it was in the context of the wrong details being entered. Maybe I needed to spell that out.Making a mistake could in fact potentially make you negligent if it is not a mistake that a reasonable person would make. In this instance, and I mean no personal offence to the OP, I think the relevant question would be whether a reasonable person would not check the drop down menu from the postcode checker and/or would not check over all details before confirming an order. I have to say I think the answer is ‘no’ and I think your attempt to assert that the retailer’s software definitely made a mistake is quite absurd. We have no idea if the retailer’s software ‘made’ any mistake or not and I struggle to see what a software ‘mistake’ would even look like in the context of a consumer being asked to provide address details. Further, I fundamentally disagree that the retailer has to necessarily check ID in order to be considered to have carried out a delivery with reasonable care and skill. In my opinion that would very much depend on numerous circumstantial questions such as the nature of the goods, the size of the package, any delivery instructions indicated by the consumer (e.g. whether ok to leave with a neighbour or in a safe place) and the address in question. In short, I think there are numerous variables and your confidence in blaming software is ambitious at best. Let’s not forget innumerable people provide address details correctly every day and the only person capable of providing correct details is the consumer.In view of our lack of agreement on numerous points I think that we will again simply have to agree to disagree, however given your unquestioning steadfastness in a position which, as indicated above, I think is highly doubtful, I yet again ask how it can rationally be said that if a consumer uses his/her own name for a delivery to their MIL’s house but then falls out with the MIL, so she does not pass the goods on, that the goods would not be considered to be delivered; whereas if, for exactly the same order, the consumer had used the MIL’s name (again at her house) it would be considered delivered. That is, to me, quite an absurd proposition and you are effectively proposing that the domestic relationships of a consumer could be a retailer’s problem.I am also genuinely curious, though I doubt that you or Lunatic will answer, what would you say the legal situation is if a consumer uses an entirely fictional name as recipient? Something like Voldemort, Dracula, Frankenstein or Santa Claus etc.I am not just making up a hypothetical scenario for the sake of it here, I have seen it done in practice. How would the retailer be able to confirm the correct recipient by exercising your purported due diligence in such a situation? Should the consumer be prohibited from using fake names?In general it appears to me that your interpretation is too simplistic and doesn’t take any account of what happens in reality.If the fictional name is obvious then the trader can choose to decline the sale, if the name isn't then we go back to ensuring the goods are only handed to the correct person, which I know is followed by how is this achieved and round we go
Under your viewpoint if there happens to be a guy standing in my porch then the trader can give him the goods, the fact he didn't disclose that he isn't John Smith but instead is delivering takeaway leaflets isn't for consideration.Thanks for the reply. In the grand scheme of the thread I think the multiple nominee question is a minor issue but surely a choice would have to be made, and if the choice wasn’t open to the retailer then presumably the consumer would have to make the ultimate nomination which, practically, would then be a unique nomination. Otherwise how would multiple nominees work in practice?
Regarding the fictional name, thanks for your thoughts but, as you noted, I don’t think they really addressed the point or the inconsistencies of your interpretation. Declining a sale isn’t really a satisfactory answer because some consumers always like to be able to do things differently and would expect a retailer to accept their business if they weren’t breaking any laws etc. With the return of Abba someone might want to send a special edition book to ‘The World’s Biggest Abba Fan’ or something, and there really isn’t any reason why they shouldn’t be able to. Further, as you note, if a piece of Harry Potter merchandise was addressed to Professor McGonagall (or similar), the retailer would have no way of satisfying the required duties as you see them. As you say, however, we really are going round in circles 😊
Regarding your last point, I disagree. I consider the circumstances you describe would constitute a failed delivery, not a successful delivery to the (incorrect) address indicated by a consumer. As mentioned in an earlier post (not certain which - there have been a few now!), I do think the intention of wording in the Act was to protect a consumer against circumstances such as theft of goods left outside or given to a person leafleting as per your example. (Also, not that it’s critical, but I do think that most couriers, and postmen/postwomen in particular, are wise to such a possibility and generally would knock on a door or use a letterbox regardless.)
Continuing the logic of your viewpoint, if you were to transfer money to a solicitor or accountant, e.g. for a house deposit or something, and used the bank details exactly as provided to you by the solicitor, would you consider that the risk was yours to bear if the money in fact went to the wrong account because the solicitor had mistakenly provided the wrong details (e.g. digits were accidentally mixed up or such) and proceed to make a second payment unquestioningly, or would you consider that if you had acted exactly in accordance with the solicitor’s instructions that it would be their responsibility and they should not only not expect you to find another deposit but compensate you for any loss/damage etc?
I think this point is being made overly complicated, if more than one is nominated then who ever the trader happens upon first and takes the goods is the one who comes in to physical possession.
Consumers can like as they wish but as if often stated here traders have the right not to serve (worth a note that with most online purchases acceptance is upon dispatch). If the retailer accepts an order for a book to The World’s Biggest Abba Fan that's at their risk. Again it's an example of where the risk is profitable, if the book is a fiver odds are all will be well and if not it's a fiver, if the book is £5000 maybe the retailer will be less willing to entertain such quirks.
A solicitor or accountant isn't a consumer with legislation to offer them additional rights, it's not really an apt comparison.Thanks again for the reply 😊. So the multiple nominees would all have to be at the same address then? That sounds likes its edging quite close to the address being the critical factor and all that entails….
I disagree, if the retailer accepts the order and delivers a book addressed to ‘The World’s Biggest Abba Fan’ to the requested address then they cannot be said to not have fulfilled their obligations, whether the book costs £5 or £5000. What part of the Act or Regulation do you think says that they would not have fulfilled their obligations if delivered as requested? Just because it is impossible to confirm the recipient’s identity does not in any way mean that the retailer would or could not have discharged its responsibilities.
Indeed, a solicitor or an accountant is not a consumer but Unholyangel and yourself (perhaps less so) have argued that the 'risk and control' matter is a general legal principle, so I do think it is an apt comparison. If you insist that an item is not considered duly delivered when delivered to an erroneous address provided by a consumer or to a person’s MIL if the wrong name is used, then why would a money transfer not remain wholly at the risk of the person transferring the money, irrespective of the solicitor’s error? In reality I suspect you wouldn’t accept the loss and would blame the solicitor, and I suspect a judge would agree with you. Similarly, I consider that a judge would interpret the CRA in a rational manner that avoids all the absurdities and inconsistencies you are declining to address (such as the MIL name question raised by Diinozzo).
Someone organising their wedding may ask for the cake to be delivered to the venue and could nominate that the cake being handed to them, the wedding planer, venue receptionist, maid of honour, etc, etc is suitable. Whoever the trader happens upon first from the nominate list takes physical possession of the goods and risk passes. If the receptionist takes it and then drops it that's at the consumer's risk. If it's stipulated the cake must only be handed to them or the wedding planer but is still left with the receptionist who again drops it, that is at the trader's risk.
Regarding the book, the question you originally posed was if the name was made up how would the trader show the goods were given to the consumer as they effectively don't exist, which I said they shouldn't accept such orders. Your example is a feasible example to support the made up name question but I think the answer remains the same. You said consumers like to do things differently but that doesn't mean they have a right to do so and where they don't have a right the trader doesn't have to oblige unless they choose to at their risk.
Regarding money transfer, my limited knowledge doesn't extend to liability in the example you gave, perhaps it is apt and just not within my understandingIt is usually advised to transfer a nominal amount and confirm receipt before transferring a sum you'd be unhappy with losing which does give the sender some control and I think the person who receives the money in error should return it, although I have no idea who would actually be at fault and ultimately pick up the tab.
I suspect anyone else still reading this (if there is anyone) might be bored of our constant exchanges but the wedding cake example is an interesting one so thanks for posting that 🙂.Again, however, I think your interpretation is too literal and doesn’t equate with reality. At a real wedding I consider what would likely happen is that the cake delivery person would turn up and ask their contact where they wanted the cake and it would be placed where requested, and that would be it delivered. There could be a manual handing over but there really doesn’t have to be in order for a transfer to occur. Indeed, as you have indicated, dropping is a danger and so to minimise the risk of dropping I think manual handling would deliberately be minimised, and so I consider a ceremonial handing over would be avoided whenever possible! I understand what you are trying to say about the receptionist dropping the cake but in the real world the hotel would then end up compensating the happy couple and/or swiftly finding a replacement cake.I honestly do think you are too concerned with a very literal interpretation of ‘physical possession’ and other terms, a point which has been very insightfully questioned by ‘Manxman in Exile’ and which I don’t think you have rationally addressed (I think the chance of a judge finding goods had not been delivered if they were burgled from someone’s house after being posted through the letterbox is negligible). Physical possession is not manual possession and the CRA would be a very strange law indeed if it required you to touch something in order for it to be considered to be in your possession.Regarding the book, I don’t see that there are any CRA terms that mean a consumer wouldn’t have the right to use a made up name. The CRA doesn’t contemplate made up names and so it doesn’t prohibit their use. So, if the trader chooses to oblige then what is the risk that you see? How would a consumer argue that the book hadn’t been delivered to the world’s biggest Abba fan if it had been delivered to the address as requested?
This poster (and to an extent unholyangel) are notorious for simply posting chapter and verse of the law without any thought at all. But clearly, the law is not as black and white as that.
It's obvious to anyone with a modicum of common sense that the entire system of ordering things at a distance would fall apart if the law was interpreted as strictly as they appear to tell people.
Clearly it isn't, and I'd say unreservedly that anyone trying to challenge "non-delivery" on the basis that they didn't take delivery themselves is going to lose in court.
I suspect they take their chances on the reality that 99.9% of the people that come here have no intention of going to court and 99.9% of retailers who meet resistance will find it cheaper to back down, so nobody is really going to challenge their insane interpretation in a court of law.2 -
Parking_Eyerate said:I suspect anyone else still reading this (if there is anyone) might be bored of our constant exchanges but the wedding cake example is an interesting one so thanks for posting that 🙂1
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Parking_Eyerate said:Money_Grabber13579 said:longjohnjohnson said:Ergates said:Ergates said:Clearly that isn't going to apply where the consumer supplied the wrong address to the trader.
The trader has the opportunity to confirm the address details with the consumer, if they choose not to do so, which is understandable as it isn't practical, then the run the risk that such instances will occur.
The trader *did* deliver the goods, to the address specified by the customer within the agreed period.
In this instance that doesn't matter as the goods are being returned to sender so wasn't delivered anyway.2) Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer.
If the trader wishes to use a third party to deliver the goods they accept the risks that come with this. If they choose not to verify the address they run the risk it's incorrect, if they choose to deliver to an address without verifying the person who accepts them at the door is not the consumer they run the risks of this too.
If the goods had been delivered the OP should attempt to recover them IMHO as they are obligated to mitigate their losses for any small claim but as the goods were not delivered in this instance then well they haven't been delivered.
The goods will be returned to the trader who should refund in full, they will lose the outward shipping cost but they'd lose this under normal circumstances if the consumer cancelled their contract.(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 they are being delivered as a gift this would be classed as "a person identified by the consumer to take possession of the goods" and passing of risk would occur when the person the gift was for had the goods in their physical possession.
I presume this clause exists so that the consumer is not responsible for the goods until they rest in their hands, otherwise the consumer would be responsible for instances where, for example, goods are left on their door step or delivered to a neighbour, or indeed companies would no doubt attempt to say things like lost and damaged in transit are the consumer's problem.
To close the door on goods claimed as not being received when they actually were the trader can of course take steps to ensure they are only handed to the consumer and no one else, it's just that in most instances this doesn't occur because we've accepted a system of low cost and convenience. Whether consumers demand or companies dictate is a different debate altogether but the current system is obviously profitable otherwise it would change.
Yes there is the risk of abuse just as there is the risk of say shoplifting in a traditional retail store environment, these are overheads that companies will do their best to limit within a certain cost.I suspect anyone else still reading this (if there is anyone) might be bored of our constant exchanges but the wedding cake example is an interesting one so thanks for posting that 🙂.Again, however, I think your interpretation is too literal and doesn’t equate with reality. At a real wedding I consider what would likely happen is that the cake delivery person would turn up and ask their contact where they wanted the cake and it would be placed where requested, and that would be it delivered. There could be a manual handing over but there really doesn’t have to be in order for a transfer to occur. Indeed, as you have indicated, dropping is a danger and so to minimise the risk of dropping I think manual handling would deliberately be minimised, and so I consider a ceremonial handing over would be avoided whenever possible! I understand what you are trying to say about the receptionist dropping the cake but in the real world the hotel would then end up compensating the happy couple and/or swiftly finding a replacement cake.I honestly do think you are too concerned with a very literal interpretation of ‘physical possession’ and other terms, a point which has been very insightfully questioned by ‘Manxman in Exile’ and which I don’t think you have rationally addressed (I think the chance of a judge finding goods had not been delivered if they were burgled from someone’s house after being posted through the letterbox is negligible). Physical possession is not manual possession and the CRA would be a very strange law indeed if it required you to touch something in order for it to be considered to be in your possession.Regarding the book, I don’t see that there are any CRA terms that mean a consumer wouldn’t have the right to use a made up name. The CRA doesn’t contemplate made up names and so it doesn’t prohibit their use. So, if the trader chooses to oblige then what is the risk that you see? How would a consumer argue that the book hadn’t been delivered to the world’s biggest Abba fan if it had been delivered to the address as requested?
This really is the crux of the matter, if you order a coffee to your table you could argue once the server places it on the table it's in your possession rather than when you actually touch it but if you don't see the coffee because you are reading a newspaper and it then falls or is knocked off why should that be your risk?
Obviously they'd just give you another coffee without debates on physical possession but a coffee on the table, a parcel through a letterbox, it's the same in my view. You are aware of the goods once you touch them and then risk has passed.
In the game of chess you can never let your adversary see your pieces0 -
Parking_Eyerate said:Money_Grabber13579 said:longjohnjohnson said:Ergates said:Ergates said:Clearly that isn't going to apply where the consumer supplied the wrong address to the trader.
The trader has the opportunity to confirm the address details with the consumer, if they choose not to do so, which is understandable as it isn't practical, then the run the risk that such instances will occur.
The trader *did* deliver the goods, to the address specified by the customer within the agreed period.
In this instance that doesn't matter as the goods are being returned to sender so wasn't delivered anyway.2) Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer.
If the trader wishes to use a third party to deliver the goods they accept the risks that come with this. If they choose not to verify the address they run the risk it's incorrect, if they choose to deliver to an address without verifying the person who accepts them at the door is not the consumer they run the risks of this too.
If the goods had been delivered the OP should attempt to recover them IMHO as they are obligated to mitigate their losses for any small claim but as the goods were not delivered in this instance then well they haven't been delivered.
The goods will be returned to the trader who should refund in full, they will lose the outward shipping cost but they'd lose this under normal circumstances if the consumer cancelled their contract.(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 they are being delivered as a gift this would be classed as "a person identified by the consumer to take possession of the goods" and passing of risk would occur when the person the gift was for had the goods in their physical possession.
I presume this clause exists so that the consumer is not responsible for the goods until they rest in their hands, otherwise the consumer would be responsible for instances where, for example, goods are left on their door step or delivered to a neighbour, or indeed companies would no doubt attempt to say things like lost and damaged in transit are the consumer's problem.
To close the door on goods claimed as not being received when they actually were the trader can of course take steps to ensure they are only handed to the consumer and no one else, it's just that in most instances this doesn't occur because we've accepted a system of low cost and convenience. Whether consumers demand or companies dictate is a different debate altogether but the current system is obviously profitable otherwise it would change.
Yes there is the risk of abuse just as there is the risk of say shoplifting in a traditional retail store environment, these are overheads that companies will do their best to limit within a certain cost.I suspect anyone else still reading this (if there is anyone) might be bored of our constant exchanges but the wedding cake example is an interesting one so thanks for posting that 🙂.Again, however, I think your interpretation is too literal and doesn’t equate with reality. At a real wedding I consider what would likely happen is that the cake delivery person would turn up and ask their contact where they wanted the cake and it would be placed where requested, and that would be it delivered. There could be a manual handing over but there really doesn’t have to be in order for a transfer to occur. Indeed, as you have indicated, dropping is a danger and so to minimise the risk of dropping I think manual handling would deliberately be minimised, and so I consider a ceremonial handing over would be avoided whenever possible! I understand what you are trying to say about the receptionist dropping the cake but in the real world the hotel would then end up compensating the happy couple and/or swiftly finding a replacement cake.I honestly do think you are too concerned with a very literal interpretation of ‘physical possession’ and other terms, a point which has been very insightfully questioned by ‘Manxman in Exile’ and which I don’t think you have rationally addressed (I think the chance of a judge finding goods had not been delivered if they were burgled from someone’s house after being posted through the letterbox is negligible). Physical possession is not manual possession and the CRA would be a very strange law indeed if it required you to touch something in order for it to be considered to be in your possession.Regarding the book, I don’t see that there are any CRA terms that mean a consumer wouldn’t have the right to use a made up name. The CRA doesn’t contemplate made up names and so it doesn’t prohibit their use. So, if the trader chooses to oblige then what is the risk that you see? How would a consumer argue that the book hadn’t been delivered to the world’s biggest Abba fan if it had been delivered to the address as requested?
This really is the crux of the matter, if you order a coffee to your table you could argue once the server places it on the table it's in your possession rather than when you actually touch it but if you don't see the coffee because you are reading a newspaper and it then falls or is knocked off why should that be your risk?
Obviously they'd just give you another coffee without debates on physical possession but a coffee on the table, a parcel through a letterbox, it's the same in my view. You are aware of the goods once you touch them and then risk has passed.So is awareness the issue now or would I need to manually touch the coffee? I’m not clear what position you are taking now but quite simply I think it should reasonably be considered to be delivered, however if the waiter/waitress placed it in an impractical location on the table then they would be partially responsible if it was knocked off. Also the customer still has to behave reasonably remember, and not carelessly flourish their newspaper.On a similar note, if you ordered and paid for a meal that was delivered to your friends’ table when you were at the toilet but you didn’t go back to the table because you forgot you had to rush off for a meeting, would that be at the retailer’s risk if you had not explicitly said I nominate my friends to take receipt of my meal? Would you be lawfully able to go back the next day and demand a refund?If you order drinks at a bar and the bartender puts them on a tray and you pick up the tray but don’t touch the drinks themselves then you drop the tray, is that at the retailer’s risk because you haven’t manually handled the drinks directly? What if the bartender says here are your drinks at the bar but you ask them to carry them to a table for you and then you swing your arms and knock the tray or bartender and spill the drinks without ever having touched them? Would the retailer be entitled to ask you to pay?If you get a text message saying a parcel has been delivered to your house while you were at work, would that be ok for the retailer or would you have to go home to manually handle the parcel in order for delivery to be complete?Honestly, I really think trying to argue that delivery necessitates manual handling is preposterous…0 -
It's possible to come up with an infinite number of extreme situations which can't all be individually be catered for in legislation, without a higher court ruling to create a precedent there will always be debate and so I can only give my interruption.
Again with the restaurant a waiter should ask if you are ready to eat and only serve those that are, the bartender shouldn't give you a tray of drinks, assuming risk hasn't passed. It may be argued it has passed as holding a tray is similar to holding a parcel, both an object to contain goods, that's another rabbit hole to go down.
Regarding swinging your arms up in the air, I have no idea but I think passing of risk might be the least of your problemsIn the game of chess you can never let your adversary see your pieces0 -
It's possible to come up with an infinite number of extreme situations which can't all be individually be catered for in legislation, without a higher court ruling to create a precedent there will always be debate and so I can only give my interruption.
Again with the restaurant a waiter should ask if you are ready to eat and only serve those that are, the bartender shouldn't give you a tray of drinks, assuming risk hasn't passed. It may be argued it has passed as holding a tray is similar to holding a parcel, both an object to contain goods, that's another rabbit hole to go down.
Regarding swinging your arms up in the air, I have no idea but I think passing of risk might be the least of your problemsIndeed, we can only give our own interpretations/opinions, on that we agree! 😊
A waiter first asking if you are ready to eat is not really reflective of how people generally expect food service to work and why would a drink sitting on a tray be materially different to a coffee on a table, if, for example, you then decided to move the table before touching the coffee?! 😉
It has been an interesting discussion, so thanks, and I hope that it might have been helpful/interesting for some people reading who can, of course, make up their own minds 😊
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Glad it's not just me that finds such things interesting
Maybe one day this will be clarified and who knows which way it may go, look at private parking tickets, penalties are an unfair term in consumer contracts but the firms managed to talked their way out of that one.In the game of chess you can never let your adversary see your pieces0 -
How can any seller/courier absolutely guarantee that they delivered to the 'consumer' ? They cannot. Couriers including the Royal Mail deliver to addresses.0
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