Refund denied for a returned tent as deemed 'used' by removing it from box

the_lunatic_is_in_my_head

prowla said:

The thread title says it is "deemed 'used' by removing it from box".

But the OP clarifies that they completely unpacked it and set it up in their garden.

That's quite different.

The act of pitching a tent doesn't diminish it's value, the manner in which you handle it on the other hand might. 

If someone posted to say I pitched the tent in my garden, returned it with mud and grass stains and the retailer wants to impose a x% reduction then, subject to the information requirements and fairness of reduction, that would be fair enough IMHO.  

sheramber

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

Pollycat

the_lunatic_is_in_my_head said:

Pollycat said:

shiraz99 said:

Pollycat said:

shiraz99 said:

mr_stripey said:

shiraz99 said:

DanDare999 said:

biscan25 said:

We bought a tent from Decathlon a couple of months ago. I bought from the shop as I had a physical voucher from a previous mishap, but had found the tent online. The store didn't have it up as a display model, so the assistant said to go grab a coffee and they'd put one up for me! A+ customer service, but I probably would've bought a different tent if I could have seen it erected.

So I'd say erecting the tent is reasonable for inspection, as people would normally be able to see the tent up in the shop.

My local Decathlon has them erected on the grass outside, would you be happy paying full price for that one?

I'm sorry but that has no relevance. The fact remains, regardless of whatever reason the OP has chosen to cancel the purchase (and they don't have to give any), they are entitled to handle the goods in the same way they could reasonably do in a bricks and mortar store.

But you can't go into a bricks and mortar store and pick a tent and pitch it outside to decide if it's as big as it says on the packaging, can you?

I've been to many an outdoor shop, usually in the bigger retail parks, where they have tents pitched up in store and out the front, in fact I was a tent sale at a garden centre the other day and they had a full range of tents on display outside.

mr_stripey was talking about a prospective buyer pitching a tent.
Not tents pitched by the retailer.

Maybe those tents already pitched would be price marked down as 'ex-display'...

That doesn't matter. It's the very fact that they are up and available to inspect that's the main factor.

But not taken outside from the store by a prospective buyer and erected by that prospective buyer.

I would hazard a guess that not all tents on sale are erected outside for inspection.

The legislation says might reasonably be allowed in a shop, these things would depend upon how well you can articulate your position and what view the claims process would take on the day.

Whilst you can't take a specific tent off the shelf and put it up I'd expect a shop to have display models of different brands and tents with different features allowing you to make an assessment of each and compare the differences, you may for example pick brand A over B because the quality is better. 

The other point is the retailer should have no idea you've pitched the tent, you should be able to do this without any indication, the OP's problem is the packaging being opened which I would say is permitted and if you can open the packaging you can spread out the contents to examine it, by this point you aren't far off pitching the tent.

And even if we argue that you can't open the packaging but you do this doesn't prevent cancellation, it merely allows for a deduction, which would be small for the outer packaging simply having been opened, this is where the trader fails as they stipulate to cancel the goods must be unopened. 

Thanks.
Answers mr_stripey's question on page 8.

nedlammas

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

the_lunatic_is_in_my_head

nedlammas said:

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

@nedlammas

Dear Tent Company

Regarding my order xx and your refusal to issue a refund for my return due to the goods having been opened, my position is that the limits of application covering the right to cancel the contract do not include the condition of the goods, you may find these limits here:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/28

The requirements surrounding reimbursement in the event of cancellation do alternatively permit you to make a deduction for diminished value subject to handling beyond what is necessary to establish the nature, characteristics and functioning of the goods, however I draw your attention to paragraph 11 below:

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.

Schedule 2 paragraph (l) for your reference:

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;

As you have linked the right of cancellation to the condition of the goods which is not in accordance with regulations 27 to 38 you have failed to comply with the noted required information, thus a deduction is not permitted and a full refund is due. 

I hereby request a full refund be issued without delay, alternatively please provide me with the address to serve small claims papers.

Thank you in advance,

nedlammas

As an aside OP should you wish to go via small claims be sure to send a letter before action (templates on Google) to the company before filing for the small claims process.

Don't get drawn into anything else, don't offer the company any more information nor discuss what you did with the goods as none of it matters, just stick to this very basic position   

prowla

the_lunatic_is_in_my_head said:

prowla said:

The thread title says it is "deemed 'used' by removing it from box".

But the OP clarifies that they completely unpacked it and set it up in their garden.

That's quite different.

The act of pitching a tent doesn't diminish it's value, the manner in which you handle it on the other hand might. 

If someone posted to say I pitched the tent in my garden, returned it with mud and grass stains and the retailer wants to impose a x% reduction then, subject to the information requirements and fairness of reduction, that would be fair enough IMHO.  

But if I received a tent with (say) a blade of grass in it, I would not accept it as new.

nedlammas said:

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

OTOH, a supplier's T&Cs do not override the law on distance selling.

There's a difference between opening an item for inspection and using it.

the_lunatic_is_in_my_head

prowla said:

the_lunatic_is_in_my_head said:

prowla said:

The thread title says it is "deemed 'used' by removing it from box".

But the OP clarifies that they completely unpacked it and set it up in their garden.

That's quite different.

The act of pitching a tent doesn't diminish it's value, the manner in which you handle it on the other hand might. 

If someone posted to say I pitched the tent in my garden, returned it with mud and grass stains and the retailer wants to impose a x% reduction then, subject to the information requirements and fairness of reduction, that would be fair enough IMHO.  

But if I received a tent with (say) a blade of grass in it, I would not accept it as new.

nedlammas said:

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

OTOH, a supplier's T&Cs do not override the law on distance selling.

There's a difference between opening an item for inspection and using it.

So there you go, diminished value. 

The key point is the consumer using the goods does not prevent them from cancelling the contract. 

nedlammas

the_lunatic_is_in_my_head said:

nedlammas said:

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

@nedlammas

Dear Tent Company

Regarding my order xx and your refusal to issue a refund for my return due to the goods having been opened, my position is that the limits of application covering the right to cancel the contract do not include the condition of the goods, you may find these limits here:

www.legislation.gov.uk/uksi/2013/3134/regulation/28

The requirements surrounding reimbursement in the event of cancellation do alternatively permit you to make a deduction for diminished value subject to handling beyond what is necessary to establish the nature, characteristics and functioning of the goods, however I draw your attention to paragraph 11 below:

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.

Schedule 2 paragraph (l) for your reference:

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;

As you have linked the right of cancellation to the condition of the goods which is not in accordance with regulations 27 to 38 you have failed to comply with the noted required information, thus a deduction is not permitted and a full refund is due. 

I hereby request a full refund be issued without delay, alternatively please provide me with the address to serve small claims papers.

Thank you in advance,

nedlammas

As an aside OP should you wish to go via small claims be sure to send a letter before action (templates on Google) to the company before filing for the small claims process.

Don't get drawn into anything else, don't offer the company any more information nor discuss what you did with the goods as none of it matters, just stick to this very basic position   

Much appreciated!

shiraz99

prowla said:

the_lunatic_is_in_my_head said:

prowla said:

The thread title says it is "deemed 'used' by removing it from box".

But the OP clarifies that they completely unpacked it and set it up in their garden.

That's quite different.

The act of pitching a tent doesn't diminish it's value, the manner in which you handle it on the other hand might. 

If someone posted to say I pitched the tent in my garden, returned it with mud and grass stains and the retailer wants to impose a x% reduction then, subject to the information requirements and fairness of reduction, that would be fair enough IMHO.  

But if I received a tent with (say) a blade of grass in it, I would not accept it as new.

nedlammas said:

sheramber said:

 Has the OP advised how the company have come to the conclusion that it is 'used' since he said they hadn't received it yet.

They have deemed it to be 'used' because their policy states :" Items must be unused, unopened and in original packaging" - ie there is no opportunity to 'inspect' the goods without removing the right to return. As far as I know they have not inspected it. 

OTOH, a supplier's T&Cs do not override the law on distance selling.

There's a difference between opening an item for inspection and using it.

He's not used it, he's handled the tent in way to determine it's full nature, characteristics and function. Using the tent would entail having a camping holiday with it.