Item not as described, used, can I return? 18 October 2022 at 1:31AM in Consumer rights 27 replies 1.2K views

NeedSomeHRadvice

Hi,

I got sent wrong trainers from one retailer and then mis-described trainers from another retailer, both bought online.

1) Wanted to take up running and ordered a pair of trainers from JDSports. I have ran in the trainers (used on a treadmill - NOT outside) but I have now realised that they have sent the wrong model of trainer and not what I ordered. I've had them for a month and used them maybe 4 times in the gym only.

2) Order another pair of trainers from business seller on ebay (also has an external website). They were described as having Bluetooth technology so that I could track my runs. I have ran in the trainers (used them on the treadmill again - NOT outside) twice and now discovered that these trainers do not have Bluetooth technology so seller mis-described them. I've had them for a couple of weeks.

Am I able to return these for a refund or is the seller likely to say "sorry you've used them" so no return/refund? How should I go about it. 

Thanks

cymruchris

Checking they were correct and operational should have been the first thing you did on receipt. As you've run in both of them, they are now 'used'. Had you identified the problems of them being wrong at the time of delivery - you'd have gotten both pairs back very easily.

I've used Under Armour running shoes with bluetooth - and the first thing I did when I got them out of the box was to see if they connected - which they did. Not that it's related to your issue - but why did you go off running in them doing workouts without connecting them to your phone to see if they worked first? (In the case of Under Armour - the pairs that are bluetooth compatible are clearly marked on their boxes - as I've had several pairs of with and without over recent years).

You could try approaching the retailers to see what they offer, but your options might be limited as the product is no longer new. Yes they made errors - but you've used both pairs, so they may accept a return at a reduced value as they can no longer sell them at full price. You could try writing as you've done above to see if they'll offer any goodwill options - to JD to say that they've supplied the wrong item, but you've only spotted it after a couple of runs on a treadmill, and to the ebay seller, you could question as to why you can't connect to bluetooth as per their advert while running on the treadmill, and see what their replies come back as. 

the_lunatic_is_in_my_head

If you are seeking a remedy when the goods do not conform to the contract (i.e something is wrong) then it doesn’t matter if the goods have been used.

The second one is simple, visit your my eBay purchase history and open a return for the item selecting doesn’t match the description. You have 30 days from the delivery date (or if no date registered with eBay then 30 from the last ETA date) to do this. You’ll get a pre-paid label and a full refund. If the seller is Top Rated they can reduce the refund however you can appeal this with eBay who will likely fund the difference.

For the first it’s return for a full refund, if you face difficulty with them saying you’ve returned the wrong item then try a chargeback with your card provider.

TELLIT01

The OP says they have had the first pair for a month so may not be able to return under the distance selling regs.  Do the regs really say that if you have had and used items for under a month you can return them without any cost involved?

born_again

NeedSomeHRadvice said:

Hi,

I got sent wrong trainers from one retailer and then mis-described trainers from another retailer, both bought online.

1) Wanted to take up running and ordered a pair of trainers from JDSports. I have ran in the trainers (used on a treadmill - NOT outside) but I have now realised that they have sent the wrong model of trainer and not what I ordered. I've had them for a month and used them maybe 4 times in the gym only.

2) Order another pair of trainers from business seller on ebay (also has an external website). They were described as having Bluetooth technology so that I could track my runs. I have ran in the trainers (used them on the treadmill again - NOT outside) twice and now discovered that these trainers do not have Bluetooth technology so seller mis-described them. I've had them for a couple of weeks.

Am I able to return these for a refund or is the seller likely to say "sorry you've used them" so no return/refund? How should I go about it. 

Thanks

So did you connect these to your phone before starting runs? Which app are they connected to?

Could it be that they only work on actual runs & not on a treadmill, as bluetooth connects to a app to track your run.

Manxman_in_exile

But returning a distance sale isn't relevant here is it?  The point is that the two retailers sent the OP items different from those that they ordered, therefore they don't conform to contract under the Consumer Rights Act.  

If the items don't conform to contract because they aren't what the OP ordered, the legislation doesn't say that they can't be returned for a full refund if they've been used.  I don't see why there should be any evidence that they've been used four times on an indoor treadmill anyway.  I've just checked my latest running shoes, which have been used outside 13 times covering 55 miles, and there is no sign of wear yet on the outsole.  If I'd used them just 4 times on an indoor treadmill, like the OP, there wouldn't be a mark on them.

If the traders can't resell the items at full price because they've been "used" then they need to make sure they send out the correct items in future...

(And yes, when I buy anything online I accept that there is probably a relatively high risk that I'm not the first person to open the box and that I'm not the first person to "use" whatever it is)

Manxman_in_exile

born_again said:

NeedSomeHRadvice said:

Hi,

I got sent wrong trainers from one retailer and then mis-described trainers from another retailer, both bought online.

1) Wanted to take up running and ordered a pair of trainers from JDSports. I have ran in the trainers (used on a treadmill - NOT outside) but I have now realised that they have sent the wrong model of trainer and not what I ordered. I've had them for a month and used them maybe 4 times in the gym only.

2) Order another pair of trainers from business seller on ebay (also has an external website). They were described as having Bluetooth technology so that I could track my runs. I have ran in the trainers (used them on the treadmill again - NOT outside) twice and now discovered that these trainers do not have Bluetooth technology so seller mis-described them. I've had them for a couple of weeks.

Am I able to return these for a refund or is the seller likely to say "sorry you've used them" so no return/refund? How should I go about it. 

Thanks

So did you connect these to your phone before starting runs? Which app are they connected to?

Could it be that they only work on actual runs & not on a treadmill, as bluetooth connects to a app to track your run.

That's what I wondered.  Polar (and possibly Garmin too?) used to have what I think they described as a "pod" that attached to your shoe amd measured cadence and stride length etc using an accelerometer (or something) and which I presume could be used on an indoor treadmill.  

I don't see the point of Bluetooth shoes but I can't understand why that wasn't the first thing the OP checked...

Grumpy_chap

the_lunatic_is_in_my_head said:

If you are seeking a remedy when the goods do not conform to the contract (i.e something is wrong) then it doesn’t matter if the goods have been used.

Manxman_in_exile said:

But returning a distance sale isn't relevant here is it?  The point is that the two retailers sent the OP items different from those that they ordered, therefore they don't conform to contract under the Consumer Rights Act.  

If the items don't conform to contract because they aren't what the OP ordered, the legislation doesn't say that they can't be returned for a full refund if they've been used.  I don't see why there should be any evidence that they've been used four times on an indoor treadmill anyway. 

I don't think that I am convinced that the consumer rights are that clear cut.

When receiving something, the reasonable requirement is that the consumer inspects the item on receipt and can only undertake such testing as they could do if they were viewing the item in a shop.   In the case of a pair of trainers, that would be to try them on for size and pad about a few minutes in the living room.

(A similar thing crops up periodically with TV sets and retailers not accepting return once the device has been configured for the user.)

Although, in this case, the OP shouldn't even be getting to the trying them on stage.  The OP (twice, which is very unlucky) ordered trainers A and received trainers B.  In each case, that was the point to return the trainers and the supplier then receives returns that can be retailed.

In both cases the OP has kept the trainers and used them for a month.  I do think it would be evident that trainers have been used four times for exercise - they are no longer new and suitable for retail sale after a few workouts with sweat and wear to the inner lining.

If it truly doesn't matter if the goods have been used, why stop after using the trainers four times on the treadmill?  Why not "only training and competing in one marathon"?

(There was a recent thread where someone received a car, but it was without the wireless phone charging.  Can they use the car for a month before rejecting as not conforming?)

Suppliers do make mistakes and they need to correct the fault when that happens, but it is fair that the consumer returns the items as brand new.  Using the items for a month could be considered as acceptance.  

Remember, for everyone who causes a retailer to lose money, the price goes up for everyone else.

It also seems very coincidental that the OP has ordered two pairs of trainers, received the incorrect product both times, failed to check either time but simply used the trainers for a month before realising they were note the product they asked for.  A cynic might suggest this was someone who decided to take up exercise then got bored with it and now wants a refund.  A bit like the gym memberships taken out in January for a year but never used after the induction session.

user1977

Think you're conflating "change of mind" returns with the "not as described" right to return - there's no principle for the latter that you lose the right if you've made more than minimal use of the item. But I'd still expect a bit of a struggle to persuade the retailer that you couldn't have noticed the wrong model as soon as you opened the parcel.

(and off-topic, but I'd really recommend buying running shoes from a specialist shop rather than the big "sportswear" chains or eBayers)

Grumpy_chap

user1977 said:

Think you're conflating "change of mind" returns with the "not as described" right to return - there's no principle for the latter that you lose the right if you've made more than minimal use of the item. 

"not as described" right to return must still have some requirement to act reasonably (on behalf of the consumer).

Otherwise, the OP could use these trainers for a whole year of trail running and then send them back under the guise that the incorrect model was received.

OP ordered trainers "A".
OP received trainers "B"
Time to send them back was when the box was first opened.
No need to even try them on for size and certainly not to use them for a month.

It is not as though the wrong model received is something that the OP could not have identified without using the trainers.  There may be cases where the element of "not as described" cannot be identified unless using the item - the pair of trainers being the incorrect type is not one of them.

By reference to the other thread where someone had a car delivered without the wireless charging pad (which it should according to the order specification), why don't they use the car for the next 15 years and then send it back for a full refund "not as described"?  

the_lunatic_is_in_my_head

Grumpy_chap said:

user1977 said:

Think you're conflating "change of mind" returns with the "not as described" right to return - there's no principle for the latter that you lose the right if you've made more than minimal use of the item. 

"not as described" right to return must still have some requirement to act reasonably (on behalf of the consumer).

Otherwise, the OP could use these trainers for a whole year of trail running and then send them back under the guise that the incorrect model was received.

OP ordered trainers "A".
OP received trainers "B"
Time to send them back was when the box was first opened.
No need to even try them on for size and certainly not to use them for a month.

It is not as though the wrong model received is something that the OP could not have identified without using the trainers.  There may be cases where the element of "not as described" cannot be identified unless using the item - the pair of trainers being the incorrect type is not one of them.

By reference to the other thread where someone had a car delivered without the wireless charging pad (which it should according to the order specification), why don't they use the car for the next 15 years and then send it back for a full refund "not as described"?  

If they kept them for a year then the retailer could reduce the refund to account for usage. 

The CRA put a 6 month limit on full refunds, so if your fridge packs up after 4 months, is repaired but packs up again 7 weeks later you'd be due a full refund and would have had almost 6 months use for free.

No different to trainers that aren't as described and if the retailer carries out their obligation to replace the goods there wouldn't be any free use anyway as the 6 month clock doesn't reset. 

A problem the consumer may face is proof "on the balance of probability" for something like damaged upon arrival if they wait a long time to raise the issue as it may cast doubt on whether the goods arrived damaged or were damaged in their possession but with goods not matching the description in the examples the OP cites then it's clear cut whether or not the goods conform and the act clearly lays out the timeframes and processes for both the consumer and trader. 

I think you fall into the trap of discussing what is "right" rather than what is detailed in the legislation