Distance selling laws. Refund on a sofa deposit after being sacked.

Aylesbury_Duck

HillStreetBlues said:

Manxman_in_exile said:

I understand the point you are trying to make.

Thank you for that.

Manxman_in_exile said:

But to succeed you would need to persuade the trader (or a judge) that the OP (1) visiting a sofa store, (2) seeing a sofa that he liked and (3) going to the trouble of getting the salesman's details so that he could get back in touch to place an order, were not the first steps of entering into a contract that was agreed and concluded later.

That point might be arguable, but I don't think it's very convincing.  I think most people (and a judge) would decide the visit formed a part of the contracting process...

The first steps were certainly at the store, but it's not when the first steps are taken, it is only the last step that matters, where was the contract agreed. This was over the phone.

That's where your understanding differs from mine.  Taking your argument to an extreme conclusion, a consumer could convert any on-premises interaction into a distance sale simply by paying remotely some time later.  If I go to a dealer, test drive a car, then call the next day to place an order by phone and send my deposit by bank transfer, is it now a distance sale?

Now, in practice, I could of course go to M&S, try on a suit then go home and order it online.  It wouldn't be a distant sale by definition, but neither would M&S be able to show that so in practice, I'd be covered by the CCRs for distance selling even if it that cover wasn't obtained entirely honestly.  In OP's situation, I suspect he had interaction in the store that the salesman would remember.

HillStreetBlues

Aylesbury_Duck said:

I disagree, as per Manxman's point.  

I agree that "The OP was not at the traders premises when the contract was agreed", but the contracting process was started in-store.  The point of the distance selling elements of the CCRs is to provide consumers with a reasonable opportunity to see, touch and test an item as they could if they visited a physical store, and return an item they don't consider suitable.  OP literally visited a store and saw, touched and presumably sat on the sofa, so they've had their chance to test it.  If the store knows this and can show it, I doubt a judge would consider it a distance sale.

I agree with you on what the regs are meant to do.
But legally you can go into a store test a product  then go home any buy it there are you are covered by the regs are it's where the contract is agreed. It no doubt it can be considered a loophole.

A judge should follow the letter of the law if they agree with with it are not.
Under that letter it's an off-premises contract so must be treated as such.

pinkshoes

HillStreetBlues said:

I agree with you on what the regs are meant to do.
But legally you can go into a store test a product  then go home any buy it there are you are covered by the regs are it's where the contract is agreed. It no doubt it can be considered a loophole.

A judge should follow the letter of the law if they agree with with it are not.
Under that letter it's an off-premises contract so must be treated as such.

https://www.themotorombudsman.org/distance-sales-faqs

This is a link for cars but same thing... You will see it says:

• REMEMBER: If you visit the retailer’s premises at any time during the sales process, so for example, when paying your deposit or signing your paperwork, this no longer counts as a distance sale. Therefore, you won’t have a cancellation period and your usual consumer rights will apply.

As the OP visited the store, this is NOT a distance sale. 

Manxman_in_exile

HillStreetBlues said:

Aylesbury_Duck said:

No, that's where you are incorrect.  

Speculation on the store's motives isn't relevant, although you may be speculating correctly.  They know (or should know) that it is already not a distance sale.  It doesn't matter how OP pays the balance, it will never be a distance sale.

No, that's where I am correct


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

What do the Regulations cover?

Most contracts made and negotiated between traders and consumers are covered, and the Regulations split these contracts into three types:

off-premises contracts. There are four types of these contracts:
1. A contract made where a consumer and trader are together and agree the contract in a place that is not the trader's business premises - for example, in a consumer's home or place of work

2. A contract made where a consumer and trader are together and an offer is made by the consumer in a place that is not the trader's business premises - for example, where a consumer signs an order form during a visit to their home and the trader agrees the contract later
3. A contract that is agreed on a trader's business premises or through any means of distance communication immediately after a meeting with a consumer in a place that is not the trader's business premises. For example, a salesperson meets a consumer in the high street and convinces them of the benefits of buying a water filter; the consumer is then taken to the local office of the trader to sign the contract for the equipment. An example of this scenario using distance communication would be if the salesperson in the high street meets the consumer and immediately enters into a contract with them using a tablet computer
4. A contract made with the consumer during an excursion organised by the trader with the aim of selling or promoting goods or services to the consumer. The Regulations do not define an 'excursion'; however, it is possible that this will cover a situation where a trader meets a consumer on holiday and invites them to travel with the trader to a different venue to be sold goods or services

It is clearly classed as an off-premises contract.  The OP was not at the traders premises when the contract was agreed.

No.  It is not an off-premises contract. 

I don't care how the Business Companion interprets it, but this is what the legislation says:

“off-premises contract” means a contract between a trader and a consumer which is any of these—

(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;

(d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

Which of the above do you think applies here?

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

Manxman_in_exile

HillStreetBlues said:

Manxman_in_exile said:

I understand the point you are trying to make.

Thank you for that.

Manxman_in_exile said:

But to succeed you would need to persuade the trader (or a judge) that the OP (1) visiting a sofa store, (2) seeing a sofa that he liked and (3) going to the trouble of getting the salesman's details so that he could get back in touch to place an order, were not the first steps of entering into a contract that was agreed and concluded later.

That point might be arguable, but I don't think it's very convincing.  I think most people (and a judge) would decide the visit formed a part of the contracting process...

The first steps were certainly at the store, but it's not when the first steps are taken, it is only the last step that matters, where was the contract agreed. This was over the phone.

I don't think so.

1.  I think you might be confusing "distance sales" with "off-premises sales".  They aren't the same things.

2.  You are ignoring this point made earlier:

shiraz99 said:

HillStreetBlues said:

MH1927 said:

They do apply they state within Part 1, Regulation 5 (Other Definitions)

"“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded."

So the CCR's do not define it as a distance contract.

That is concluded, not started .

You're missing the phrases "exclusive use...of distance communication up to..the contract is concluded". This means anything leading up to the contract conclusion, ie,  visiting the store, engaging with staff to enquire about the sofa, etc. The whole process of purchasing that sofa was started in the store, hence why CCRs do not apply.

The inclusion of the words "up to" would be meaningless if all that was meant by "is concluded", was the point at which the contract was finalised.

I believe most people think it's pretty clear that "up to... the contract is concluded" means any time from the point the contract process begins, up to the point it ends.  Most people in this thread believe that the purchase (and hence the contracting) started when the OP visited the store and found a sofa he wanted to buy

shiraz99

HillStreetBlues said:

Aylesbury_Duck said:

No, that's where you are incorrect.  

Speculation on the store's motives isn't relevant, although you may be speculating correctly.  They know (or should know) that it is already not a distance sale.  It doesn't matter how OP pays the balance, it will never be a distance sale.

No, that's where I am correct


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

What do the Regulations cover?

Most contracts made and negotiated between traders and consumers are covered, and the Regulations split these contracts into three types:

off-premises contracts. There are four types of these contracts:
1. A contract made where a consumer and trader are together and agree the contract in a place that is not the trader's business premises - for example, in a consumer's home or place of work

2. A contract made where a consumer and trader are together and an offer is made by the consumer in a place that is not the trader's business premises - for example, where a consumer signs an order form during a visit to their home and the trader agrees the contract later
3. A contract that is agreed on a trader's business premises or through any means of distance communication immediately after a meeting with a consumer in a place that is not the trader's business premises. For example, a salesperson meets a consumer in the high street and convinces them of the benefits of buying a water filter; the consumer is then taken to the local office of the trader to sign the contract for the equipment. An example of this scenario using distance communication would be if the salesperson in the high street meets the consumer and immediately enters into a contract with them using a tablet computer
4. A contract made with the consumer during an excursion organised by the trader with the aim of selling or promoting goods or services to the consumer. The Regulations do not define an 'excursion'; however, it is possible that this will cover a situation where a trader meets a consumer on holiday and invites them to travel with the trader to a different venue to be sold goods or services

It is clearly classed as an off-premises contract.  The OP was not at the traders premises when the contract was agreed.

You're totally misunderstanding what an off-premises contract is.

Manxman_in_exile

HillStreetBlues said:

Aylesbury_Duck said:

I disagree, as per Manxman's point.  

I agree that "The OP was not at the traders premises when the contract was agreed", but the contracting process was started in-store.  The point of the distance selling elements of the CCRs is to provide consumers with a reasonable opportunity to see, touch and test an item as they could if they visited a physical store, and return an item they don't consider suitable.  OP literally visited a store and saw, touched and presumably sat on the sofa, so they've had their chance to test it.  If the store knows this and can show it, I doubt a judge would consider it a distance sale.

... But legally you can go into a store test a product  then go home any buy it there are you are covered by the regs are it's where the contract is agreed. It no doubt it can be considered a loophole...

Ah!  But are you sure of that?

If I went into a store to test a product and then went home to buy it online from the same purchaser, I would accept that I was running the risk of the retailer saying it wasn't a distance sale.*

That's why, if I go into a shop to test a product that I intend to buy online from them, I make damn sure they don't know who I am in the shop.  Unfortunately for the OP, they drew attention to themselves by asking the salesman for their card, and I suspect that the salesman might also have asked the OP for their details at that point...

That's why you really shouldn't give your details out without a fight.

As I said earlier, I understand and appreciate the point you are trying to make.  But I don't think it's a runner.


*Usually, of course, it would never become an issue because a store is unlikely to follow up on it.  But here it appears they have.

HillStreetBlues

shiraz99 said:

You're totally misunderstanding what an off-premises contract is.

Yes, I was.
I now stand corrected.

Aylesbury_Duck

HillStreetBlues said:

shiraz99 said:

You're totally misunderstanding what an off-premises contract is.

Yes, I was.
I now stand corrected.

It's been a good discussion though, and your counter-arguments may be of help to other people trying to navigate what can be a nuanced situation.  There's no harm in challenging and testing interpretations of the consumer rights.

theoretica

Manxman_in_exile said:

*Usually, of course, it would never become an issue because a store is unlikely to follow up on it.  But here it appears they have.

Though I am not sure from reading the OP that the retailer is using this particular argument - rather than sticking their fingers in their ears and going la la we never give refunds...   So continuing to push for a refund may be worthwhile.