Overstock duplicate order refund

unholyangel

JetpackVelociraptor said:

There seems to be clear distinction made between a link to a PDF on a website versus a PDF that's downloadable from the customers' account on said website. If it's a link to a page on the website, it's not regarded as durable means because that can be edited after the fact. If it's a PDF that is downloadable from the customers' account section of the website, i.e. they have to log in in order to download the file, and said files remain on the site for a reasonable period of time, then it is regarded as durable. At least according to this guidance published in 2013 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/429300/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

That's provided for retailers so I would hope that it's accurate!

I'm fairly sure that providing the information only as a paper copy inside the packaging would not count. The customer hasn't been informed of their rights at the point at which they're trying to cancel, because they're trying to cancel before receipt of the goods and won't have full details of the contract until they've received them.

They seem to be misinterpreting comments made by the EU courts in a judgement about durable medium with regards to financial services - which aren't covered by CCRs and have their own regulations with slightly different requirements for information on a durable medium to that of the CCRs. 

However, the courts only said a document available via a customer's account could, in theory, meet the durable medium criteria if it meets all the requirements of a durable medium (being able to be personally addressed, stored and reproduced unedited). 

The chances of a customer account actually meeting the criteria is very low, since it will be on the retailers server.

But again, if it requires action by the consumer to actually receive it then it has only been made available rather than provided. 

And the CCRs also state the information needs to be provided before the consumer is bound by the contract. 

Jenni_D

As has already been asked ... notwithstanding the point as to whether a contract can even exist (i.e. when and how cancellation rights have been advised to the consumer), what do the T&Cs say regards when a contract is formed? If they say that contract is formed on despatch notification and the OP hasn't received any such notifications then there's no contract to cancel - the OP is merely withdrawing their offer.

the_lunatic_is_in_my_head

unholyangel said:

JetpackVelociraptor said:

There seems to be clear distinction made between a link to a PDF on a website versus a PDF that's downloadable from the customers' account on said website. If it's a link to a page on the website, it's not regarded as durable means because that can be edited after the fact. If it's a PDF that is downloadable from the customers' account section of the website, i.e. they have to log in in order to download the file, and said files remain on the site for a reasonable period of time, then it is regarded as durable. At least according to this guidance published in 2013 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/429300/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

That's provided for retailers so I would hope that it's accurate!

I'm fairly sure that providing the information only as a paper copy inside the packaging would not count. The customer hasn't been informed of their rights at the point at which they're trying to cancel, because they're trying to cancel before receipt of the goods and won't have full details of the contract until they've received them.

They seem to be misinterpreting comments made by the EU courts in a judgement about durable medium with regards to financial services - which aren't covered by CCRs and have their own regulations with slightly different requirements for information on a durable medium to that of the CCRs. 

However, the courts only said a document available via a customer's account could, in theory, meet the durable medium criteria if it meets all the requirements of a durable medium (being able to be personally addressed, stored and reproduced unedited). 

The chances of a customer account actually meeting the criteria is very low, since it will be on the retailers server.

But again, if it requires action by the consumer to actually receive it then it has only been made available rather than provided. 

And the CCRs also state the information needs to be provided before the consumer is bound by the contract. 

Thanks @unholyangel useful input as always

Out of interest what does this mean with regards to the consequence for the trader?

If the consumer highlights they aren't bound due to the lack of information can the trader then supply it and the consumer become bound? 

Money_Grabber13579

unholyangel said:

JetpackVelociraptor said:

There seems to be clear distinction made between a link to a PDF on a website versus a PDF that's downloadable from the customers' account on said website. If it's a link to a page on the website, it's not regarded as durable means because that can be edited after the fact. If it's a PDF that is downloadable from the customers' account section of the website, i.e. they have to log in in order to download the file, and said files remain on the site for a reasonable period of time, then it is regarded as durable. At least according to this guidance published in 2013 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/429300/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

That's provided for retailers so I would hope that it's accurate!

I'm fairly sure that providing the information only as a paper copy inside the packaging would not count. The customer hasn't been informed of their rights at the point at which they're trying to cancel, because they're trying to cancel before receipt of the goods and won't have full details of the contract until they've received them.

They seem to be misinterpreting comments made by the EU courts in a judgement about durable medium with regards to financial services - which aren't covered by CCRs and have their own regulations with slightly different requirements for information on a durable medium to that of the CCRs. 

However, the courts only said a document available via a customer's account could, in theory, meet the durable medium criteria if it meets all the requirements of a durable medium (being able to be personally addressed, stored and reproduced unedited). 

The chances of a customer account actually meeting the criteria is very low, since it will be on the retailers server.

But again, if it requires action by the consumer to actually receive it then it has only been made available rather than provided. 

And the CCRs also state the information needs to be provided before the consumer is bound by the contract. 

I’m not in any position to agree or disagree with this but playing devil’s advocate, is there a difference between having to download a pdf from an online customer account (which I think you’re saying wouldn’t be durable means) and having to download a pdf from an email? To my simple mind, both seem to require action by the customer to receive it which would suggest that neither could then be durable and given that attaching a pdf to an email seems incredibly common, that’s a lot of companies then breaking the rules…

Jenni_D

A PDF attached to an email would be durable ... after all it has been sent specifically to the consumer and can be saved separately from the seller's control. A PDF linked from an email would not. Likewise, downloading a PDF from an account area probably would not be durable either (for the reasons stated).

That's how I see it.  

Jumblebumble

born_again said:

ktp111 said:

I guess I was wondering if s75 applies to duplicate transactions and whether that would be applicable here

S75 does not cover this. Even a chargeback would not as the orders were placed.
Real PIA when stuff like this happens.

In my view Its a strange interpretation to suggest that the fact that a website tells someone your order did not go through mean that an order was placed ?

I would be trying everything  Chargeback etc
I spend my life being told things will not work but when I make enough fuss they often do.
( Credit card company would be asked to charge back and if they did not formal complaint and ombudsman on the basis that the website confirmed the order did not go through)

"the website kept freezing up and told me that the purchase didn't go through, so I tried twice more and it didn't work, so I gave up. I didn't get any confirmation email, the charge didn't appear on my credit card, and the purchase didn't appear on the my orders section of my online overstock account"

Ergates

Jumblebumble said:

born_again said:

ktp111 said:

I guess I was wondering if s75 applies to duplicate transactions and whether that would be applicable here

S75 does not cover this. Even a chargeback would not as the orders were placed.
Real PIA when stuff like this happens.

In my view Its a strange interpretation to suggest that the fact that a website tells someone your order did not go through mean that an order was placed ?

I would be trying everything  Chargeback etc
I spend my life being told things will not work but when I make enough fuss they often do.
( Credit card company would be asked to charge back and if they did not formal complaint and ombudsman on the basis that the website confirmed the order did not go through)

"the website kept freezing up and told me that the purchase didn't go through, so I tried twice more and it didn't work, so I gave up. I didn't get any confirmation email, the charge didn't appear on my credit card, and the purchase didn't appear on the my orders section of my online overstock account"

Not really - the order *was* placed by the customer, it's just that the retailer's website crashed and incorrectly said it hadn't.  There is no S75 category of "The website incorrectly said the order hadn't gone through". 

To claim the order wasn't placed by the OP would be to claim it was fraudulently placed by another person using the OPs credit card.  This *wasn't* what happened, and claiming it was would be making a false claim of fraud.  *Especially* as the OP will actually have the items that were ordered - from the perspective of the company and the bank that would be flat-out fraud.

Where S75 *can* help is if the retailer is liable under UK law to pay for the return of the chairs but refuses to do so.  *Then* S75 could be used to reclaim the cost of returning the chairs.

ktp111

Updating now because I have received the first chair and am awaiting the other two. There is absolutely no paperwork from overstock enclosed. So I never received any order confirmation or receipt by email, and there is not even a receipt on my online account. The chairs are listed under my orders with no price or further information. There's no button to click on their website to return the item--apparently I'd have to contact them. So it appears that they have definitely failed to meet their obligation under English law to provide me with a contract, t&C's, and information on cost for returning the item.

I contacted my cc company before I received the chair and was encouraged to file a chargeback request once the chairs were received and to make them available for pickup rather than paying to ship them back. The guy on the phone told me to call back and they'd help me fill the form.

 The chair also arrived in a very banged up box, though it turned out the chair was ok inside. I contacted FedEx because the driver told me he had no way to register that the box was damaged. FedEx told me I'd need to contact overstock directly because overstock claims the right to negotiate damage claims with FedEx. But after two attempts to contact overstock before the chair was delivered, one by phone and one by email, their mo seems to be to ignore the specifics of any complaint and give a generic answer that I'm welcome to return in accordance with their policies.

I guess I'm wondering given all this whether my best bet is to decline the other two chairs, especially if the boxes are damaged, and file a chargeback, or should I accept them and do the same? Or is it S75 and not a chargeback I want to attempt?

I really appreciate the advice!

the_lunatic_is_in_my_head

@ktp111 Before doing anything with the bank I think you should send an email to the retailer formally cancelling your contract.

It doesn't matter if they see it or acknowledge it, as long as you have proof you sent it. AFAIK you only need to simply say: 

Dear retailer

I'm am writing to advise that I am exercising my right to cancel the contract for the following order numbers: xxx, xxx & xxx

Best regards, ktp11

The bank will prefer a chargeback as the funds will come from the seller where as S75 the bank covers the refund (although they might try to claim the money back from the retailer), if they push you down the chargeback road but it fails you'd still have S75 cover AFAIK.

As a note there maybe a question as to whether or not you are bound by the contract and are simply withdrawing your offer rather than cancelling a contract (as one hasn't been formed). 

If you withdraw your offer I don't know what happens with the goods, maybe you are an involuntary bailee and the retailer should collect the goods that you'd have a duty to take care of rather than you be bound to return as you are when cancelling. @jennie_D or @unholyangel might clarify.

Accepting or returning to sender again I'm not sure, personally I'd accept them, go down the S75 road and see if the card company want the chairs. 

ktp111

OK, I've drafted the following letter to overstock. I'd already informed them in writing on April 14 that I was cancelling the order. So this is my follow up. And then once this is sent I'm planning to contact my CC company to dispute the charges. Does this look suitable?

Dear Overstock,

I am writing to confirm what I stated on the phone to your representative on April 13, 2020, and confirmed in writing in an email to you on April 14, 2020: I am exercising my write to cancel order numbers xxx and xxx. The right to cancel these orders is granted by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 .

These orders were placed due to an error on your part. Your website told me that my order had not gone through and asked me to re-enter the information. I therefore received three chairs. I am keeping one and hereby returning the other two.

In addition, you have failed to meet your obligation under the terms of  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to provide me in durable format with a contract, terms and conditions, and information about the costs of returning the item. I did not receive any correspondence from you confirming my orders until after the items had been shipped. I have still not been provided with a receipt for these items and there is not one available on my account on your website. There was also no information from you included with the shipments.

The chairs were delivered in damaged boxes by Fed Ex. They were left in my garden when I was not at home, and I was not given any opportunity to inspect or sign for the items before delivery. Fed Ex has instructed me to contact you directly about this damage.

Please contact me to arrange pick up of these items. Please note that because you have failed to meet your obligation under paragraph (5)(b) of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you are obligated to bear the costs of returning these goods.

Please also note that I will be contacting my credit card company to dispute these transactions.

Best wishes,