Returned items lost by Royal Mail

Jenni_D

Not sure where that exactly comes from, other than it being an act of tort (?) whereby the OP is liable for the safe handling of goods they no longer "own"; almost like being a bailee for the goods (but not an involuntary bailee as they did order them).

Manxman_in_exile

Jenni_D said:

Manxman_in_exile said:

That's not what s32 says:

"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."

... The distinction is important - if the OP paid for the return then the goods remain at the OP's risk until the seller receives them. If the seller paid for it then it becomes their risk as soon as the goods have been handed to their nominated returns agent. But even if the OP is liable for the risk, that does not in any way remove the OP's right for a full* refund - it simply means the seller would have to pursue a separate claim against the OP for the value of the goods...

OK.

But if I were a judge (and I hasten to add I am not - obviously @Ath_Wat would say!) I would be asking myself:  "Then why on earth would Parliament have enacted s34(5)(b)?"

Because what you appear to be saying is that if the "sent back" goods never actually make it into the possession of the trader, but the consumer has evidence that they were "sent back" (according to the ordinary meaning of those two words - eg proof of posting), then the trader must refund the consumer under s34(5)(b) within 14 days of being presented with that evidence, but the trader can then pursue a separate claim for the value of the lost goods against the consumer.  Is that right?

I hope you don't mind my saying so, but doesn't that seem a bit daft and backasswards?  Wouldn't it simply have been easier - and have made much more sense - for Parliament to have enacted a provision in the first place that clearly says a refund is payable when, and only when, the goods are returned into the physical possession* of the trader?

It sounds a bit like standing in Glasgow and asking which way is Moscow.  One person points due east and says "It's about 1800 miles that way" but somebody else says "You don't want to go that way.  You want to go 15000 miles this way" and points due West!  (Those distances are for purely illustrative purposes BTW).

But I don't know the answer - I'm just day dreaming...

*Isn't it interesting that the Consumer Rights Act (s29) talks very precisely and unambiguously about goods actually coming "... into the physical possession of... the consumer... " but that the bit of the Cancellation Regulations merely talks about "sent back" with absolutely no mention of delivery, receipt or possession?

Olinda99

that is even more true when you think these laws are heavily scrutinised by the commons, committees and the lords before passing into law. Surely someone would have asked 'what if...'

one can only assume the law means exactly what it says.

Jenni_D

Some have been known to say (in certain circumstances) that "the law is a donkey" (or something like that)

I believe the legislation is written that way to prevent unscrupulous vendors from pretending that the goods never arrive, so they can receive the goods and keep the money. Plus a business is in a better position to either a) absorb the loss or b) be able to pursue a court claim for the loss, than a consumer would be. Given that the legislation is the Consumer Rights Act, why does this position seem odd?

Again, IMHO and IANAL

Manxman_in_exile

But couldn't those same unscrupulous traders still pretend never to have received the goods and also pursue a separate claim against the consumer?  I don't see that s34(5)(b) prevents that...  

The law can never be " a !!!!!!".  (Am I allowed* to say that?  It was good enough for Dickens but is it good enough for MSE?)  The donkeys are the people who make the law.  And in this case they appear to have been more asinine than was necessary...

[Edit:  * Obviously not.  How strange this place has become]

Jenni_D

Manxman_in_exile said:

But couldn't those same unscrupulous traders still pretend never to have received the goods and also pursue a separate claim against the consumer?  I don't see that s34(5)(b) prevents that...  

Yes they could, and no it doesn't. But it makes the consumer have a safer position, and the business would have to prove non-receipt (on the balance of probabilities) - something that may be a bit more difficult depending on the evidence the consumer has for proof of sending.

the_lunatic_is_in_my_head

Jenni_D said:

To put another spanner in the works, and switching the bolding:

Manxman_in_exile said:

That's not what s32 says:

"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."

What do the T&Cs for this seller say as to when a contract is formed?

If the T&Cs say contract is formed when notification of despatch is provided, then the OP doesn't even have a contract to cancel; they have an offer that they're withdrawing.

Ignore the above - I was thinking of another thread.

Another question ... OP mentions printing off a label. What exactly was this label? Was it just a returns label with a code and the seller's address, and OP paid for the return? Or was it a pre-paid returns label and the seller paid for the return?

The distinction is important - if the OP paid for the return then the goods remain at the OP's risk until the seller receives them. If the seller paid for it then it becomes their risk as soon as the goods have been handed to their nominated returns agent. But even if the OP is liable for the risk, that does not in any way remove the OP's right for a full* refund - it simply means the seller would have to pursue a separate claim against the OP for the value of the goods.

* Subject to reasonable deductions for loss of value caused by the OP's "handling" of the goods.

I can see your thinking but I think there should be a difference highlighted between care and risk.

You might recall the thread a few weeks back with the damaged door return where I suggested if the OP had used the same packing the retailer had then I didn't feel the damage should be their responsibility. They would have taken the same care as the trader did and it seems to be an unfair burden to place upon the consumer to bear the risk. 

Of course if you return a dinner set loose in a plastic bag then I think it's fair to say you've been negligent and should expect to cover the cost of your actions.

Pretty much the same here, I'm sure there will be a small queue of posters to say the OP was negligent by not paying for compensation but they used the national postal system rather than Ath's cousin Larry "The Diamond Fence" Kray, the OP reads as if they were unaware of the compensation issue until a cheque arrived with only £60 on it. 

You read the motoring forum and we should all know how to change the oil on our car, read the DIY forum and we should all know how to put up a shelf, read this thread and we should all know how to return stuff but you can't know everything and I think the average person knows little about posting parcels.

I know how to return stuff, my wife probably has a good idea but not for everything, my parents no clue, my aunt still puts £20 notes in Christmas cards and it's not something that comes up but I doubt all our friends are all clued up on how the post and couriers work.

Sort of veering from consumer rights as the above is my opinion, there's no mention of risk for return in the CRA or Cancellation regs (that I know of), it would be great to have a definitive answer on this topic.