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

Manxman_in_exile

macman said:

shiraz99 said:

macman said:

Ergates said:

Pollycat said:

shiraz99 said:

VohnnyJegas said:

shiraz99 said:

macman said:

But it's clearly opened and used as defined by the t and c's. What consumer legislation are you relying on?
Look at this the other way around. Would you be happy if they had sold you a tent, described as new, and at full price, that had the packaging opened and had been assembled? They also have no way of knowing if it's been used: for all they know you used it for a week's holiday and then returned it. So they cannot honestly resell it as new.
I doubt that S75 or chargeback would be successful here, but you have nothing to lose by trying.

And??

It's an online purchase and under the terms of the CCRs the OP is entitled to open the packaging to do "what is necessary to establish the nature, characteristics and functioning of the goods,", also who said anything about being "used", it was put up once that's all.

That doesn't include pitching it up.

Who says? If pitching the tent is the only way to establish the "nature, characteristics and functioning of the goods" , which for a tent I'd say that's exactly what it does, then it's allowed. You go into most camping shops and there'll be tents already set up and displayed, this is no different.

But will those tents be sold at full price or marked down as 'display models'?

It's the exact same principle as clothes.   If you buy a shirt from an online retailer,  it is entirely reasonable and allowed to take it out of the packaging and try it on.  If it doesn't fit and you return it, then the retailer will probably sell it as new.

I don't think it is the same principle. Clothing can only be assessed for fit by trying it on, albeit briefly.
The OP bought a tent that was entirely the wrong size. You don't need to 'try a tent on', or even assemble it, to gauge it's size. The dimensions were presumably stated on the retailer's site, and probably on the packaging upon delivery, but he failed to check that they matched his requirements, which were apparently the same as the older tent he was replacing. He ordered the wrong model, but unpacked it and assembled it. It's both opened and used. however briefly for.

Establishing the nature, characteristics and functioning of goods is more than just checking it for size. The size issue may have been the reason behind the rejection but that still doesn't impact the ability to do the other things.

The functioning of the item is a separate matter. If he'd unpacked it, assembled it and found that the zip was broken, then it would be returned as faulty (non-functioning). No argument. But this is different: the tent functions perfectly well. If the OP's legs stick out the door because it's too small, that's because he ordered the wrong size. 

I'm not sure I understand your point?  Are you suggesting that it could not be returned because it's the wrong size?

As far as I'm aware, the law (basically) allows online purchases to be cancelled and returned within 14 days of their receipt, for any reason - or no reason - at all*.  The condition of the goods or whether they are returned in the original packaging or whether a tent has been erected to confirm its size and/or characteristics and/or functioning is irrelevant as regards the right to cancel.

The consumer is entitled to a full refund**, even if they have "excessively handled" the goods***, unless the retailer has clearly spelled out to them their stautory rights to cancel under The Consumer Contracts (etc... ) Regulations 2013.  I'm happy to be corrected if I'm wrong, but my understanding in this thread is that the retailer has not fulfilled that obligation and the OP is therefore entitled to a full refund.

*You posted the first response in this thread yourself.  I was a bit surprised that you asked what law the OP was relying on to return the tent as I would have thought it was obvious.  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

**  AIUI the retailer would be entitled to reduce any refund to reflect any loss in value caused by the consumer's "excessive handling".  I don't see how the retailer can possibly demonstrate a 100% loss in value here, such as to justify denying a refund.  In fact I can't see that they can justify any loss in value at all.  I'm inclined to believe that a significant proportion of goods sold online at full value have been excessively handled and returned by previous customers.  (One reason I don't buy a lot of stuff online... )

*** In any case, I don't think erecting a tent is excessive handling.  You would see an erected demo tent instore and would be able to check it out for size etc.  The point of the right to cancellation is to allow you to inspect goods as you could instore.  You would inspect an erect tent instore so it's perfectly reasonable to erect it at home.  That's the point of the right to cancel...

Manxman_in_exile

I suspect that the problem the OP has encountered here - and I further suspect it is a very common problem - is that the retailer (or their employee) is trying to employ the strict T&Cs of their own returns policy rather than the consumer's statutory right to cancel and to receive a refund under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

Whether this might be due to ignorance of the law or to the retailer "trying it on", who's to say?

km1500

This is very interesting information and as a newbie I think I understand the position:...

1. if I order something online, I can send it back within 14 days for any reason whatsoever

2. I am allowed to open the product, remove any seals etc necessary to open it, examine it, inspect it.

3. I am allowed to 'used' the item to check it is what I want but not excessively eg erect a tent, ride a bicycle a couple of times around the block, fill a mower with some petrol, start it and cut a couple of strips on the lawns to check the finish, fill a kettle with water and boil it to check it meets what I want in the way of eg noise or boiling time, plug in and tune in a PVR and set the timer to record a couple of programs to check I am OK with the Guide layout etc  etc etc

I can sent it back even after doing these or similar things.

Only question I have is that somewhere I read you can only do what you would have been able to do i a shop (so not a lot basically) - is this right?

Thanks

MattMattMattUK

km1500 said:

This is very interesting information and as a newbie I think I understand the position:...

1. if I order something online, I can send it back within 14 days for any reason whatsoever

Provided it is in it's original condition. eg. sealed, unopened, unused.

km1500 said:

2. I am allowed to open the product, remove any seals etc necessary to open it, examine it, inspect it.

No, you can only inspect it to the same level that you could inspect it in the shop, eg. look at the outside of the box.

km1500 said:

3. I am allowed to 'used' the item to check it is what I want but not excessively eg erect a tent, ride a bicycle a couple of times around the block, fill a mower with some petrol, start it and cut a couple of strips on the lawns to check the finish, fill a kettle with water and boil it to check it meets what I want in the way of eg noise or boiling time, plug in and tune in a PVR and set the timer to record a couple of programs to check I am OK with the Guide layout etc  etc etc

No.

km1500 said:

I can sent it back even after doing these or similar things.

No.

km1500 said:

Only question I have is that somewhere I read you can only do what you would have been able to do i a shop (so not a lot basically) - is this right?

Yes, that is correct, you can only inspect the item, it it's original packaging, as you would in a shop, you can not open it, damage the packaging, use it, test it etc. 

Ergates

km1500 said:

This is very interesting information and as a newbie I think I understand the position:...

1. if I order something online, I can send it back within 14 days for any reason whatsoever

2. I am allowed to open the product, remove any seals etc necessary to open it, examine it, inspect it.

3. I am allowed to 'used' the item to check it is what I want but not excessively eg erect a tent, ride a bicycle a couple of times around the block, fill a mower with some petrol, start it and cut a couple of strips on the lawns to check the finish, fill a kettle with water and boil it to check it meets what I want in the way of eg noise or boiling time, plug in and tune in a PVR and set the timer to record a couple of programs to check I am OK with the Guide layout etc  etc etc

I can sent it back even after doing these or similar things.

Only question I have is that somewhere I read you can only do what you would have been able to do i a shop (so not a lot basically) - is this right?

Thanks

1) Yes - there are exceptions (e.g. meat or flowers that expire quickly)

2) Not necessarily "any" seals - specifically hygiene seals you might find on, e.g. underwear or earrings.

3)  Yes/No.  On one level - yes you can do anything with the product and still return it.  However, the retailer is allowed to deduct from the refund for any diminished value due to excessive handling.  The basic idea is that (as you said) you can do the same things at home as you'd reasonably be able to do in a shop.   So, trying on a shirt:  Fine, the retailer shouldn't deduct for that.   Putting petrol in a lawn mower and using it: no - that's clearly more than you could do in a shop.   With electronics - it kind of depends what you do.  Switching on a TV and watching something - probably OK.  Configuring it to your settings (e.g. logging into your netFlix account): dodgy ground.  Filling and boiling a kettle:  in theory no, in practice you could probably do that then clean and dry it so nobody noticed, so maybe.    

The argument in this thread is does unpacking and assembling a tent constitute excessive handling.   Some say yes, but most people seem to think no - because whilst you'd probably not be able to do that in, say, Argos - but if you were in say Decathalon they'd have examples set up - plus given the nature of a tent it would be hard for a retailer to argue diminished value just because it had been previously assembled.

The additional "complication" to this is:  If the company does not fulfil their legal obligations with regards to providing their customers with the correct information  about their consumer rights, (in the correct format), then the company loses most of their own rights. 

nedlammas

biscan25 said:

Just asking on the off chance, was the CC used Amex? If so, the solution is much more straightforward.

It was a MasterCard.....

the_lunatic_is_in_my_head

MattMattMattUK said:

km1500 said:

This is very interesting information and as a newbie I think I understand the position:...

1. if I order something online, I can send it back within 14 days for any reason whatsoever

Provided it is in it's original condition. eg. sealed, unopened, unused.

@MattMattMattUK You're a regular poster here and I'm sure you've said in the past that you run a business (although it might not be retailing goods to consumers), this is fundamentally incorrect  

As has been stated in the thread already there is no link between the right to cancel and condition of the goods. Consumers can open goods, unseal them, use them and still cancel their contract (and thus return the goods) subject the caveats plus rules around refunds that have been extensively covered already in 6 pages! 

shiraz99

macman said:

shiraz99 said:

macman said:

Ergates said:

Pollycat said:

shiraz99 said:

VohnnyJegas said:

shiraz99 said:

macman said:

But it's clearly opened and used as defined by the t and c's. What consumer legislation are you relying on?
Look at this the other way around. Would you be happy if they had sold you a tent, described as new, and at full price, that had the packaging opened and had been assembled? They also have no way of knowing if it's been used: for all they know you used it for a week's holiday and then returned it. So they cannot honestly resell it as new.
I doubt that S75 or chargeback would be successful here, but you have nothing to lose by trying.

And??

It's an online purchase and under the terms of the CCRs the OP is entitled to open the packaging to do "what is necessary to establish the nature, characteristics and functioning of the goods,", also who said anything about being "used", it was put up once that's all.

That doesn't include pitching it up.

Who says? If pitching the tent is the only way to establish the "nature, characteristics and functioning of the goods" , which for a tent I'd say that's exactly what it does, then it's allowed. You go into most camping shops and there'll be tents already set up and displayed, this is no different.

But will those tents be sold at full price or marked down as 'display models'?

It's the exact same principle as clothes.   If you buy a shirt from an online retailer,  it is entirely reasonable and allowed to take it out of the packaging and try it on.  If it doesn't fit and you return it, then the retailer will probably sell it as new.

I don't think it is the same principle. Clothing can only be assessed for fit by trying it on, albeit briefly.
The OP bought a tent that was entirely the wrong size. You don't need to 'try a tent on', or even assemble it, to gauge it's size. The dimensions were presumably stated on the retailer's site, and probably on the packaging upon delivery, but he failed to check that they matched his requirements, which were apparently the same as the older tent he was replacing. He ordered the wrong model, but unpacked it and assembled it. It's both opened and used. however briefly for.

Establishing the nature, characteristics and functioning of goods is more than just checking it for size. The size issue may have been the reason behind the rejection but that still doesn't impact the ability to do the other things.

The functioning of the item is a separate matter. If he'd unpacked it, assembled it and found that the zip was broken, then it would be returned as faulty (non-functioning). No argument. But this is different: the tent functions perfectly well. If the OP's legs stick out the door because it's too small, that's because he ordered the wrong size. 

Sorry, but that's totally missing the point, and misinterpreting the legislation. You allowed to determine the functioning, not to see if it's faulty or not but to see if it meets with your expectations or not. And as already mentioned the reasoning is largely irrelevant as you can cancel without any reason.

VohnnyJegas

the_lunatic_is_in_my_head said:

DanDare999 said:

the_lunatic_is_in_my_head said:

As highlighted by P_F, if the company didn't provide the required information then the handling is a moot point as the company can't reduce the refund for diminished value.

Guidance below could probably cause more debate than getting to a definitive answer but personally opening and pitching a tent is similar to trying on a T-shirt, assuming it's done indoors, as you could argue you'd expect to see display tents in camping stores and pitching one at home is the same as interacting with a display model. 

https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales#Effectsofwithdrawalorcancellation

This [diminished value/excessive handling] is likely to be a controversial area of the Regulations for both consumers and traders and will ultimately be a matter for a court to decide. However, the following examples will attempt to illustrate this concept:

• a consumer returns a shirt that comes in a presentation box, which they had opened and removed all the pins and packaging to try it on. It is reasonable to expect a consumer to remove packaging to try on or examine an item, so you should make no deduction for this
• a consumer returns a shirt, which you can see has clearly been worn. The consumer has not acted reasonably and you can make a deduction for diminishing the value
• a consumer returns flat pack furniture, which they have clearly attempted to assemble by opening packs of screws and trying to put parts together. The consumer has not acted reasonably and you can make a deduction for diminishing the value

You are not able to make any deduction for diminishing the value of the goods if you have not provided consumers with the information about their right to cancel (information item 'l' above).

Pollycat said:

But will those tents be sold at full price or marked down as 'display models'?

The legislation doesn't really note the trader's ability to resell the goods or whether they will achieve a certain price.

You can certainly argue a tent that's been opened and pitched might have had it's value diminished but the point to focus on is whether the handling was excessive

So if they don't provide cancellation details, can you buy the tent, try it out for a week on holiday and then return it?

You can buy a tent (at a distance or off-premises), try it out for a week on holiday and then return it anyway. The right to cancel is not linked to the condition of the goods (except for things such as software, DVDs, etc if unsealed after delivery or the hygiene thing).

However where the trader provides the correct information on the right to cancel they can reduce the refund under diminished value rules.

If they fail to give the correct information they must issue a full refund as the regs specifically state no reduction permitted for diminished value without the correct info and there is no other allowance for the trader to make deductions. Equally the cancellation period is extended so you could buy the tent, live in it for a year and 14 days and then cancel the contract for a full refund, this is why I find it surprising so many traders fail to get the info correct as it's pretty basic stuff and they would be in a much better position by following the requirements. 

You're, again, falling into this black and white "the law says this" mentality that is your ultimate downfall, along with the holy_demon.

Who says "they must issue a full refund"?  Legislation?  OK, so who is going to enforce that?

The courts.

Do you really think a judge is going to just award a full refund to someone who has bought a tent, used it for a week and then returned it for a refund based on a technicality?  Really?

Going back to the real world, such a case would almost certainly fail because judges do also look a the spirit of the law, rather than the exact wording of it. It's why we have precedent.

You could argue the toss with the OP's situation perhaps (although I'm leanign on them being expected to see what it states on the outside of the package first rather than fully erecting it), but regurgitating legislation assuming it's black and white isn't really helpful here, and the more sensible posters have pointed this out.

nedlammas

VohnnyJegas said:

the_lunatic_is_in_my_head said:

DanDare999 said:

the_lunatic_is_in_my_head said:

As highlighted by P_F, if the company didn't provide the required information then the handling is a moot point as the company can't reduce the refund for diminished value.

Guidance below could probably cause more debate than getting to a definitive answer but personally opening and pitching a tent is similar to trying on a T-shirt, assuming it's done indoors, as you could argue you'd expect to see display tents in camping stores and pitching one at home is the same as interacting with a display model. 

www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales#Effectsofwithdrawalorcancellation

This [diminished value/excessive handling] is likely to be a controversial area of the Regulations for both consumers and traders and will ultimately be a matter for a court to decide. However, the following examples will attempt to illustrate this concept:

• a consumer returns a shirt that comes in a presentation box, which they had opened and removed all the pins and packaging to try it on. It is reasonable to expect a consumer to remove packaging to try on or examine an item, so you should make no deduction for this
• a consumer returns a shirt, which you can see has clearly been worn. The consumer has not acted reasonably and you can make a deduction for diminishing the value
• a consumer returns flat pack furniture, which they have clearly attempted to assemble by opening packs of screws and trying to put parts together. The consumer has not acted reasonably and you can make a deduction for diminishing the value

You are not able to make any deduction for diminishing the value of the goods if you have not provided consumers with the information about their right to cancel (information item 'l' above).

Pollycat said:

But will those tents be sold at full price or marked down as 'display models'?

The legislation doesn't really note the trader's ability to resell the goods or whether they will achieve a certain price.

You can certainly argue a tent that's been opened and pitched might have had it's value diminished but the point to focus on is whether the handling was excessive

So if they don't provide cancellation details, can you buy the tent, try it out for a week on holiday and then return it?

You can buy a tent (at a distance or off-premises), try it out for a week on holiday and then return it anyway. The right to cancel is not linked to the condition of the goods (except for things such as software, DVDs, etc if unsealed after delivery or the hygiene thing).

However where the trader provides the correct information on the right to cancel they can reduce the refund under diminished value rules.

If they fail to give the correct information they must issue a full refund as the regs specifically state no reduction permitted for diminished value without the correct info and there is no other allowance for the trader to make deductions. Equally the cancellation period is extended so you could buy the tent, live in it for a year and 14 days and then cancel the contract for a full refund, this is why I find it surprising so many traders fail to get the info correct as it's pretty basic stuff and they would be in a much better position by following the requirements. 

You're, again, falling into this black and white "the law says this" mentality that is your ultimate downfall, along with the holy_demon.

Who says "they must issue a full refund"?  Legislation?  OK, so who is going to enforce that?

The courts.

Do you really think a judge is going to just award a full refund to someone who has bought a tent, used it for a week and then returned it for a refund based on a technicality?  Really?

Going back to the real world, such a case would almost certainly fail because judges do also look a the spirit of the law, rather than the exact wording of it. It's why we have precedent.

You could argue the toss with the OP's situation perhaps (although I'm leanign on them being expected to see what it states on the outside of the package first rather than fully erecting it), but regurgitating legislation assuming it's black and white isn't really helpful here, and the more sensible posters have pointed this out.

I take your point, but the fact is that this tent has not 'been used for a week'. It was out of it's packaging for maybe 10 minutes in a sunny back garden on a lawn that is bone-dry. It is in 'new' condition, and getting into a debate about the situation you describe might be interesting, but is divorced from the facts of my situation. I do thank you for your help & comments, though - I'm having to learn quickly......