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Returned items lost by Royal Mail
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"Posting" defines a specific means of returning goods. Goods may be returned by a multitude of means (various courier services), that's why the legislation specifically words it as "sent back".
If the legislation required the goods to be received by the seller then it would have used words like "received" or "delivered" ... it doesn't, therefore "sent back" means the goods have been handed to a delivery mechanism (RM/Courier) and NOT that the goods have been received by the seller.
IMHO / IANAL etc.
Jenni x1 -
Just to remind everybody, the wording of s34(5) is as follows:
"(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time [ for paying the refund] is the end of 14 days after—
(a) the day on which the trader receives the goods back, or
(b) if earlier, the day on which the consumer supplies evidence of having sent the goods back."
I could very well be mistaken but it seems relatively clear to me that the wording of (5)(b) is drafted in such a way as to take account of the situation where a consumer cancels a contract and sends the goods back to the trader for a refund (and the consumer can provide evidence of having sent the goods back) but the goods get lost in the post, or for some other reason outside the consumer's control never get delivered to the retailer. In that situation s34(5)(b) says the trader must refund the consumer within 14 days of being provided by the consumer with evidence of sending. It doesn't say anything about payment of the refund being conditional on delivery to the trader. And I don't think it requires that condition anywhere else in the Act either.
If, on the other hand, Parliament actually intended that a refund was only due if the returned goods did eventually find there way back to the trader, then it would have been simple to add a few words to the end of (5)(b) along the lines of:
"(b) if earlier, the day on which the consumer supplies evidence of having sent the goods back, provided that the returned goods are eventually delivered to the trader."
But Parliament didn't do that simple thing...
As I posted earlier, I am not 100% what the provision in question means, as it seems a bit counter-intuitive to me. But the plain and ordinary meaning of the words used seems to me to be that evidence of sending can be sufficient for payment of a refund, and that actual delivery to the trader is not required.
I think that anybody who can categorically state that a court would be bound to find that actual delivery was required for a refund to be paid might be going a step too far...
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Not relevant. There have been many threads on here discussing the fact that governement online "guidance" in respect of legislation can often be misleading or just plain wrong. I think there were lots of examples during Covid as to what the legislation did or did not prevent you from doing, and the published guidance was rubbish.powerful_Rogue said:Guidance from the Governments interpretation of the legislation.
Would you, for instance, put much reliance on the PM's understanding of what sort of gatherings were permitted concerning "partygate"? (That's just a humourous aside, by the way. Not a dig at the PM, but I'm sure you take my point).
The people who write this guidance sometimes look at legislation, don't understand it, but assume it must mean something that makes sense. Often it doesn't. (I'm not convinced it makes sense here - but I think I know what (5)(b) was intended to mean...)1 -
I think you are confusing the effect of s34(5)(b) with the entirely different question of what "evidence" a court might find acceptable and reliable.Ath_Wat said:
Of course I will. Larry can give me a receipt, just like anyone else can. It's a business transaction.Manxman_in_exile said:
If your cousin Larry loses it as opposed to the the Post Office or Royal Mail losing it, the trader won't owe you £200k as you won't be able to provide evidence of having sent the ring back.Ath_Wat said:I think I'll order a £200,000 diamond ring, then give it to my cousin Larry to return. If Larry loses it, the trader owes me £200K anyway.
Come on, think about it.
Think about that...
He acknowledges losing it, he's done nothing wrong. I don't need to chase him for compensation because the company will pay me anyway; the company can't chase him because they have no contract with him.
I think a court might find evidence of "sending" via RM or a recognised courier service to be acceptable and reliable - but might find evidence from your cousin "Larry" neither so acceptable nor so reliable, unless he is well established in the courier business.
As you will have no credible evidence of sending the ring back to the trader - in fact Larry has asknowledged "losing" it - the trader won't be refunding £200k to you so will have no need to sue either you or Larry as the trader will not be out of pocket.1 -
A glimmer of light amid the darkness!Manxman_in_exile said:
On what ordinary and normal understanding of the English language does the word "sent" suddenly become equated with the word "delivered"?Jenni_D said:"Posting" defines a specific means of returning goods. Goods may be returned by a multitude of means (various courier services), that's why the legislation specifically words it as "sent back".
If the legislation required the goods to be received by the seller then it would have used words like "received" or "delivered" ... it doesn't, therefore "sent back" means the goods have been handed to a delivery mechanism (RM/Courier) and NOT that the goods have been received by the seller.
IMHO / IANAL etc.In the game of chess you can never let your adversary see your pieces1 -
I think for the OP, all this might be a bit moot as they paid with Paypal Credit.(6)If the possessor—However for non credit payments, If anyone has a login to Practical Law UK, it seems the answer is there waiting to be seen.
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
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That's not what s32 says:Ath_Wat said:
Cancellation of a contract requires both parties to be put back where they were. If the goods have not been returned the contract is not cancelled. Just informing of your intention to cancel is not cancelling it...Manxman_in_exile said:Ath_Wat said:
The section says that only if you ignore the previous sections which it follows on from, which make it clear that paragraph is about the timing of a refund, not about whether a refund is due. A court would laugh at an argument like this, it's obvious what the whole thing means. You can't quote pieces out of context.Manxman_in_exile said:
Well, no - that doesn't sound right to me either, and it's a bit of a surprise if that's what Parliament intended.Ath_Wat said:
... Do you honestly think that the law says you can send items back on a whim, uninsured and as cheaply as possible, and if they get lost in the post, the supplier takes the hit?
It reads as pretty clear cut to me, if the consumer provides evidence of return, the trader must refund within 14 days. The only reduction in the refund permitted is for diminished value.Ath_Wat said:
That is just in regard to the time scale in which a refund has to be made. It is not saying that just having evidence of sending them back is fine if they never get there.OP if you were cancelling your contract under the right to cancel then the regulations appear to place the risk of the goods in transit with the trader. The trader must refund as per:(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time is the end of 14 days after—
(a)the day on which the trader receives the goods back, or
(b)if earlier, the day on which the consumer supplies evidence of having sent the goods back.
The regulations appear to place the risk of return upon the trader and should they not wish to increase this risk by allowing the consumer to return they should instead collect the goods.
I don't see the point in having sentence (b) if the risk of return is placed upon the consumer.
It's only my view, always happy to be corrected if you have a source to suggest otherwise
And yet... that is exactly what the wording of the section appears to say. If Parliament had meant that the goods must be physically delivered back to the trader before a refund was payable, wouldn't the legislation expressly say that?
The very fact that s34(5)(b) exists in its current wording at all suggests that it was drafted in anticipation of precisely the sort of situation you describe, where returned goods get lost in the post. Why else would the legislation provide for a refund to be paid before the trader received the goods back? Perhaps the lunatic is right and it was Parliament's intention all along that if the trader doesn't want to suffer the risk then they must arrange for collection.
On the other hand, of course, it might just be an oversight on the part of the Parliamentary draftsmen and the politicians who passed it. Or it might just be exactly what they intended...
And let's face it - a lot of legislation either doesn't make much sense in some respects or might appear to be unfair
[Edit: Just to clarify, if I were a consumer I would not like to have to argue in court that it was not necessary for the trader to ever receive the goods back, but if I were a trader, neither would I like to have to argue that I did have to receive the goods back. It's rather an open question... ]
The paragraph he has quoted exists to clarify that if the goods are returned, the refund must be within 14 days of the date they are despatched, not the date they arrive. But they have to arrive.
Sorry - meant to make this point earlier but forgot.
Where does it say in the legislation that the returned goods must have been received by the trader for a refund to be due? All I can see that is necessary for a refund to be paid is that the consumer clearly communicates to the trader that they are cancelling the contract and that they can provide evidence of sending the goods back. Where does it say that receipt by the trader is necessary?"Exercise of the right to withdraw or cancel
32.—(1) To withdraw an offer to enter into a distance or off-premises contract, the consumer must inform the trader of the decision to withdraw it.
(2) To cancel a contract under regulation 29(1), the consumer must inform the trader of the decision to cancel it."
Ath_Wat said:
... I don't know where this is written, but it will be written somewhere. The piece you are hanging your hat on is clear in that it relates ONLY to timings...Manxman_in_exile said:Ath_Wat said:
The section says that only if you ignore the previous sections which it follows on from, which make it clear that paragraph is about the timing of a refund, not about whether a refund is due. A court would laugh at an argument like this, it's obvious what the whole thing means. You can't quote pieces out of context.Manxman_in_exile said:
Well, no - that doesn't sound right to me either, and it's a bit of a surprise if that's what Parliament intended.Ath_Wat said:
... Do you honestly think that the law says you can send items back on a whim, uninsured and as cheaply as possible, and if they get lost in the post, the supplier takes the hit?
It reads as pretty clear cut to me, if the consumer provides evidence of return, the trader must refund within 14 days. The only reduction in the refund permitted is for diminished value.Ath_Wat said:
That is just in regard to the time scale in which a refund has to be made. It is not saying that just having evidence of sending them back is fine if they never get there.OP if you were cancelling your contract under the right to cancel then the regulations appear to place the risk of the goods in transit with the trader. The trader must refund as per:(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time is the end of 14 days after—
(a)the day on which the trader receives the goods back, or
(b)if earlier, the day on which the consumer supplies evidence of having sent the goods back.
The regulations appear to place the risk of return upon the trader and should they not wish to increase this risk by allowing the consumer to return they should instead collect the goods.
I don't see the point in having sentence (b) if the risk of return is placed upon the consumer.
It's only my view, always happy to be corrected if you have a source to suggest otherwise
And yet... that is exactly what the wording of the section appears to say. If Parliament had meant that the goods must be physically delivered back to the trader before a refund was payable, wouldn't the legislation expressly say that?
The very fact that s34(5)(b) exists in its current wording at all suggests that it was drafted in anticipation of precisely the sort of situation you describe, where returned goods get lost in the post. Why else would the legislation provide for a refund to be paid before the trader received the goods back? Perhaps the lunatic is right and it was Parliament's intention all along that if the trader doesn't want to suffer the risk then they must arrange for collection.
On the other hand, of course, it might just be an oversight on the part of the Parliamentary draftsmen and the politicians who passed it. Or it might just be exactly what they intended...
And let's face it - a lot of legislation either doesn't make much sense in some respects or might appear to be unfair
[Edit: Just to clarify, if I were a consumer I would not like to have to argue in court that it was not necessary for the trader to ever receive the goods back, but if I were a trader, neither would I like to have to argue that I did have to receive the goods back. It's rather an open question... ]
The paragraph he has quoted exists to clarify that if the goods are returned, the refund must be within 14 days of the date they are despatched, not the date they arrive. But they have to arrive.
Sorry - meant to make this point earlier but forgot.
Where does it say in the legislation that the returned goods must have been received by the trader for a refund to be due? All I can see that is necessary for a refund to be paid is that the consumer clearly communicates to the trader that they are cancelling the contract and that they can provide evidence of sending the goods back. Where does it say that receipt by the trader is necessary?So you don't know where the law is that you are relying on? You are simply assuming that it must be written down somewhere because it's what you think the law must be, in your view? I mean you might be right, but you'd be more persuasive if you could explain where you are getting it from. At the moment it's no more compelling than me saying "I know 2+2=5, I've seen it written down somewhere but I can't find it just now... "
And the section that I've just quoted above (32) has nothing to do with timings. And the sub-heading for s34 also says nothing about it only being about timings...
Ath_Wat said:
... You cannot talk about law by taking one clause out of context. I've told you this enough times, if you persist in believing you can, that is your problem,. Take it to court if you like. See how you get on.Manxman_in_exile said:Ath_Wat said:
The section says that only if you ignore the previous sections which it follows on from, which make it clear that paragraph is about the timing of a refund, not about whether a refund is due. A court would laugh at an argument like this, it's obvious what the whole thing means. You can't quote pieces out of context.Manxman_in_exile said:
Well, no - that doesn't sound right to me either, and it's a bit of a surprise if that's what Parliament intended.Ath_Wat said:
... Do you honestly think that the law says you can send items back on a whim, uninsured and as cheaply as possible, and if they get lost in the post, the supplier takes the hit?
It reads as pretty clear cut to me, if the consumer provides evidence of return, the trader must refund within 14 days. The only reduction in the refund permitted is for diminished value.Ath_Wat said:
That is just in regard to the time scale in which a refund has to be made. It is not saying that just having evidence of sending them back is fine if they never get there.OP if you were cancelling your contract under the right to cancel then the regulations appear to place the risk of the goods in transit with the trader. The trader must refund as per:(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time is the end of 14 days after—
(a)the day on which the trader receives the goods back, or
(b)if earlier, the day on which the consumer supplies evidence of having sent the goods back.
The regulations appear to place the risk of return upon the trader and should they not wish to increase this risk by allowing the consumer to return they should instead collect the goods.
I don't see the point in having sentence (b) if the risk of return is placed upon the consumer.
It's only my view, always happy to be corrected if you have a source to suggest otherwise
And yet... that is exactly what the wording of the section appears to say. If Parliament had meant that the goods must be physically delivered back to the trader before a refund was payable, wouldn't the legislation expressly say that?
The very fact that s34(5)(b) exists in its current wording at all suggests that it was drafted in anticipation of precisely the sort of situation you describe, where returned goods get lost in the post. Why else would the legislation provide for a refund to be paid before the trader received the goods back? Perhaps the lunatic is right and it was Parliament's intention all along that if the trader doesn't want to suffer the risk then they must arrange for collection.
On the other hand, of course, it might just be an oversight on the part of the Parliamentary draftsmen and the politicians who passed it. Or it might just be exactly what they intended...
And let's face it - a lot of legislation either doesn't make much sense in some respects or might appear to be unfair
[Edit: Just to clarify, if I were a consumer I would not like to have to argue in court that it was not necessary for the trader to ever receive the goods back, but if I were a trader, neither would I like to have to argue that I did have to receive the goods back. It's rather an open question... ]
The paragraph he has quoted exists to clarify that if the goods are returned, the refund must be within 14 days of the date they are despatched, not the date they arrive. But they have to arrive.
Sorry - meant to make this point earlier but forgot.
Where does it say in the legislation that the returned goods must have been received by the trader for a refund to be due? All I can see that is necessary for a refund to be paid is that the consumer clearly communicates to the trader that they are cancelling the contract and that they can provide evidence of sending the goods back. Where does it say that receipt by the trader is necessary?I'm not taking it out of context - to me the context is reasonably clear. It's you who can't explain why your context is the one that must be used. You just keep repeating that it must be different, but can't back it up.
If my admitting that I don't know, or that I'm uncertain, as to how a court would interpret this legislation - because it's not 100% clear - is "my problem", then yes, I have a problem. But I suggest it's a better problem than somebody categorically and definitively stating that "I'm right, I must be right, I'm always right," but being unable to spell out why.
@robertsyer has asked if he has any consumer rights here. I don't know if he has or not. I think he has an arguable case under s34(5)(b) but i'm not 100% sure. I think @the_lunatic_is_in_my_head probably agrees with me. We've both attempted to explain why we hold the views that we do. For £950, if I were the OP, I'd try my chances under s34(5)(b). I'd have nothing to lose.
You, on the other hand, are 100% certain that s34(5)(b) does not apply in this situation and that if the OP took it to court it would be laughed out. But you are having difficulty explaining why the court would ignore what appears to be the plain meaning of (5)(b). You're having to resort to arguing that black is white (or that "sent" means "delivered").
It's up to the OP what they do. They can listen to you and do nothing as it would be a waste of time issuing a claim as it would be a 100% certainty and foregone conclusion that they would lose. Or they can give it a go with no certainty as to the outcome. If the alternative is a 100% definite loss of £950, I think I'd give it a go. But I'd accept that the position was unclear and that I might lose...
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"Sent back" does not mean the same as "sent". Once more your predilection for partially quoting everything is letting you down.Manxman_in_exile said:
Now you're just going round in ever decreasing circles and about to disappear!Ath_Wat said:
From that:
That's very limited guidance, comprehensive government backed advice is available here:powerful_Rogue said:From Gov.ukhttps://www.gov.uk/accepting-returns-and-giving-refundsOnline, mail and telephone order customers have the right to cancel their order for a limited time even if the goods are not faulty. Sales of this kind are known as ‘distance selling’.
You must offer a refund to customers if they’ve told you within 14 days of receiving their goods that they want to cancel. They have another 14 days to return the goods once they’ve told you.
You must refund the customer within 14 days of receiving the goods back. They do not have to provide a reason.
https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales
You must reimburse the consumer without undue delay and within 14 days from the day after they inform you of their decision. If the consumer is sending goods back to you, you need to reimburse them within 14 days of the day you get the goods back or, if earlier, 14 days from the day you receive proof from the consumer that they have sent the goods back.
Not "posted them". Sent them back. Sending them back is a process that involves them actually getting to you at the end of it. If they have just given them to a courier of their own choosing, they haven't sent them back until they get delivered.
On what ordinary and normal understanding of the English language does the word "sent" suddenly become equated with the word "delivered"?
The answer is never, because the two words have entirely different meanings - that's why they are two different words and not the same word. Absolutely nobody with a proper understanding of the English language could possibly suggest with a straight face that something could only be said to have been "sent" after it had also been "delivered". That argument would get laughed out of court as everybody would realise that you didn't know what you are talking about. By that bizarre logic, anything that had ever been lost in transit could never be said to have been sent in the first place because it it could never be delivered.
And if this frankly odd argument of yours was correct, can you please explain what the purpose would be of s34(5)(b) in the first place? If the people who drafted and passed this legislation understood your argument that the word "sent" really meant "delivered", what does (5)(b) add over and above (5)(a)?
(5)(a) says that the trader must refund within 14 days of return delivery to them, whereas (5)(b), according to your new argument, says that the trader must refund within 14 days of receiving proof from the consumer that the goods have been sent (sorry - you mean "delivered", not "sent") delivered to the trader. That's just silly. It might make sense to you but I doubt that it makes sense to many more people.
Where does this courier of their own choosing come into it? Is it mentioned in the Act? In any case, I understood that the OP in this thread had sent it (sorry - I'm doing it again) started the process of it being delivered back to the trader by using the trader's own label and sending it (sorry again, but you know what I mean I hope) via RM. What's wrong with that?
I did say earlier that I honestly don't know what the answer is - I can understand both arguments - and that I'd be more than happy for you to convince me that your view is the correct one. I'm afraid your attempt to argue that "sent" actually means "delivered" falls far short of convincing me that you are right.
As for "using the seller's own label" that's not a prepaid label. It's just a convenient form of printing off their address. That has no bearing on it at all.0 -
But insofar as s34(5)(b) is incompatible with the 1974 Act, won't the 2013 Regulations in effect override anything in the 1974 Act?powerful_Rogue said:I think for the OP, all this might be a bit moot as they paid with Paypal Credit.(6)If the possessor—
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
Well do you have a login? Do you know the answer, because I'd love to know it?powerful_Rogue said:I think for the OP, all this might be a bit moot as they paid with Paypal Credit.(6)If the possessor—However for non credit payments, If anyone has a login to Practical Law UK, it seems the answer is there waiting to be seen.
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
The first time I read S34(5)(b) I tought "That can't be right, surely?", but the more I think about it, the more I think it must mean exactly what it says.
[NB - what makes you think they know the answer? I'd be surprised if there was a decided case of any import on the issue that @Ath_Wat doesn't know about. It would be very disappointing for him that he couldn't find it... I'm jesting of course ] 0 -
Manxman_in_exile said:
But insofar as s34(5)(b) is incompatible with the 1974 Act, won't the 2013 Regulations in effect override anything in the 1974 Act?powerful_Rogue said:I think for the OP, all this might be a bit moot as they paid with Paypal Credit.(6)If the possessor—
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
Well do you have a login? Do you know the answer, because I'd love to know it?powerful_Rogue said:I think for the OP, all this might be a bit moot as they paid with Paypal Credit.(6)If the possessor—However for non credit payments, If anyone has a login to Practical Law UK, it seems the answer is there waiting to be seen.
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,
he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
The first time I read S34(5)(b) I tought "That can't be right, surely?", but the more I think about it, the more I think it must mean exactly what it says.
[NB - what makes you think they know the answer? I'd be surprised if there was a decided case of any import on the issue that @Ath_Wat doesn't know about. It would be very disappointing for him that he couldn't find it... I'm jesting of course ]Who knows which act would take precedence. Just thought i'd throw that spanner in the works!I wish I did have a login, as like you i'd love to know the answer. I'm of mixed opinions, as it can't seem right that you can send a high value item back uninsured and then still expect a full refund even if it never arrives.I'd be of the opinion that if the item isn't received, the diminshed value would be the full price, same as if arrived but was broken into a thousand pieces.A similar opinion to these solicitors websiteIt is the duty of the buyer to take reasonable care of the goods if they choose to return them. They must not be damaged. If they are, the seller may have a claim. And if the buyer fails to return the goods and a refund has been issued, the seller has a claim.
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