Newspaper deal tablet - damaged

y3sitsm3

the_lunatic_is_in_my_head said:

powerful_Rogue said:

the_lunatic_is_in_my_head said:

So can you tell me what 

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

means?

In my opinion this:

establish the nature, characteristics and functioning of the goods

Does not mean breaking an item, in this case, cracking the screen so the tracking does not work.

Which puts us back to missing out the word beyond, breaking the item is handling beyond what is required to establish.

Sandtree said:

the_lunatic_is_in_my_head said:

powerful_Rogue said:

the_lunatic_is_in_my_head said:

The answer depends upon whether they provided the purchaser with the correct durable information regarding your right to cancel the contract.

If they did then there is the right to cancel and that period is at the end of 14 days after the day on which delivery took place and they can reduce the refund (up to the full contract price) for "excessive handling".

If they didn't provide the correct information then the purchaser has 1 year and 14 days to cancel and a full refund is due regardless of the condition of the item. 

If they didn't provide the info there may be a moral consideration regarding returning something that's been damaged but that doesn't affect your consumer rights.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

(l)where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38; 

Extended cancellation period is detailed here:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/31

I disagree. Damage is totally different to excessive handling.

The regs don't actually use the words excessive but as above simply handling of the goods and damage would occur by way of handling something. Equally any imperfection to goods could referred to as damage but ultimately is classed as diminished value so it doesn't really matter either way.  

The principle of the legislation is to mirror your rights as if you were in a shop... if you were in a shop and broke one of the display TVs you would be liable for the damage you have caused. It therefore follows that negligent or willful damage would also be expected to be your liability.

The principle of the legislation (or at least the part focusing on the right to cancel) is presumably to give consumers confidence to shop online by way allowing them to withdraw from the contract should goods they can not physically see in advance not be to their expectation.

From the trader's point of view the improvement over the old DRS regs with the current cancellation regs was the introduction of the allowance to reduce the refund for diminished value, but only should the retailer comply with the required information.

The wording used is very straightforward, if "damage" was excluded why isn't this stated as an exclusion to paragraph 11? 

The gov guidance states

14. You have a right to deduct monies from refunds where goods show signs of unreasonable use leading to diminished value. You cannot usually deduct for removal of packaging to inspect the item, but you can deduct for damage or wear and tear where the item has not just been checked but used.

So by their interpretation "damage" is already covered under handling beyond which paragraph 11 then goes on to exclude without the required info.

Again if the trader is following their obligations they have nothing to worry about right?

The courts don't follow the legislation in the robotic manner that you seem to think they do. They apply a degree of common sense and actually interpret them, as best they can, given they don't know exactly what was going through the minds of the legislators when the law was drafted or passed.  Case law wouldn't exist if it was just a robotic black and white pass/fail in the way you repeatedly present it.

powerful_Rogue is bang on the money here.  There is no way a judge is going to accept that someone who has broken a product would be eligible for a full refund because, as powerful_Rogue says, the law is meant to give consumers purchasing online roughly the same rights and abilities they would have in a shop.

If they damage an item in a shop they'd be expected to pay for it, at the very least paying for the damage, so that's what they'd be expected to do if they order it online too.

mobileron

Why didnt they ask you what they should buy.

MattMattMattUK

mobileron said:

Why didnt they ask you what they should buy.

Probably because parents often like to be independent, regardless of age. Old people are also much more likely to trust advertisements in general, especially ones in print.

the_lunatic_is_in_my_head

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

noitsnotme

mobileron said:

Why didnt they ask you what they should buy.

I’ve told my parents countless times they can check with me if they want before buying things online.  But they always think they know best.  My dad has been ripped of several times by buying through Facebook ads and receiving rubbish from China even though I’ve always warned him.  And my mum has spent a small fortune constantly returning items that are never quite what she thinks (poor quality, overpriced, etc).  There’s no helping some people!!

Ergates

the_lunatic_is_in_my_head said:

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

I tend to agree with the others on this.  Regardless of the exact wording of the legislation, laws are meant to be applied in a manner that is fair and reasonable and this is how they would be interpreted by a judge/magistrate.

If somebody bought a top of the line Macbook for £2600 then dropped it in the bath, it would not be fair to force the company to give the customer a full refund because, for instance, they got one word wrong in the returns details.  Or if their returns policy complied (and even went above) all the necessary regulations, but they way in which they communicated it to the customer was not correct.  To do that would be excessively punitive.

the_lunatic_is_in_my_head

Ergates said:

the_lunatic_is_in_my_head said:

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

I tend to agree with the others on this.  Regardless of the exact wording of the legislation, laws are meant to be applied in a manner that is fair and reasonable and this is how they would be interpreted by a judge/magistrate.

If somebody bought a top of the line Macbook for £2600 then dropped it in the bath, it would not be fair to force the company to give the customer a full refund because, for instance, they got one word wrong in the returns details.  Or if their returns policy complied (and even went above) all the necessary regulations, but they way in which they communicated it to the customer was not correct.  To do that would be excessively punitive.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

MarvinDay

the_lunatic_is_in_my_head said:

Ergates said:

the_lunatic_is_in_my_head said:

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

I tend to agree with the others on this.  Regardless of the exact wording of the legislation, laws are meant to be applied in a manner that is fair and reasonable and this is how they would be interpreted by a judge/magistrate.

If somebody bought a top of the line Macbook for £2600 then dropped it in the bath, it would not be fair to force the company to give the customer a full refund because, for instance, they got one word wrong in the returns details.  Or if their returns policy complied (and even went above) all the necessary regulations, but they way in which they communicated it to the customer was not correct.  To do that would be excessively punitive.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

Ergates

the_lunatic_is_in_my_head said:

Ergates said:

the_lunatic_is_in_my_head said:

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

I tend to agree with the others on this.  Regardless of the exact wording of the legislation, laws are meant to be applied in a manner that is fair and reasonable and this is how they would be interpreted by a judge/magistrate.

If somebody bought a top of the line Macbook for £2600 then dropped it in the bath, it would not be fair to force the company to give the customer a full refund because, for instance, they got one word wrong in the returns details.  Or if their returns policy complied (and even went above) all the necessary regulations, but they way in which they communicated it to the customer was not correct.  To do that would be excessively punitive.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

No, because you can't actually give a company an unlimited fine (an infinite amount of money) - it just means the legislation doesn't apply any restrictions on the amount that can or should be applied

In any prosecution, the punishment (in this case a fine) would (or should) take into account the severity of the offence.  A fine that was excessive under the circumstances of the case (e.g. the business missed one of the bits of required info and was given a 600 billion pound fine) would be appealed and overturned.

The law is interpreted by humans, not text parsers.

the_lunatic_is_in_my_head

MarvinDay said:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

In respect of what we are talking about, no you couldn't be as you are not a trader...