'No refunds on final sale' and Distance Selling regulations

powerful_Rogue

Manxman_in_exile said:

There was a thread on here a couple of years ago about whether a s75 claim would still be applicable to purchases from abroad when the relevant consumer law (if any) would be different from that in the UK.

Apparently there is a court decision that s75 does still apply to purchases from abroad.  So if you decide to go ahead you might still be able to enforce your statutory right to cancel under The Consumer Contract Regs if you pay by credit card and it's over £100.

(I'll see if I can find the thread.  The info was posted by @born_again I think...)

Found a few articles online about this. I can't see it will give the OP any right to cancel under the CCR's. The protection will be against the following:

if you pay by credit card you can claim your money back from the credit card company if the seller fails to honour the contract, or the item is faulty or if the seller wrongly describes it or if the supplier goes out of business. https://www.wired-gov.net/wg/wg-news-1.nsf/0/FA972621E7CFC73780257385004FED7E?OpenDocument

So although s75 could apply to this purchase, UK consumer rights wouldn't.

Manxman_in_exile

This is the thread:  £7,000 chargeback denied - Page 5 — MoneySavingExpert Forum

MSE says you are covered by s75 if you:  "Used your credit card to buy something from another country online, by mail order, over the phone, or while on holiday."    Section 75 refunds: credit card protection’ - MSE (moneysavingexpert.com)

(NB - I think the wording of that MSE advice may have changed since the thread I quoted above?  I think it used to be clearer and explained that the Court of Appeal had definitively decided that s75 applied to purchases made outside the UK?)

And I think this is the Court of Appeal decision that covers it(?):  Office of Fair Trading v Lloyds TSB Bank Plc & Ors [2006] EWCA Civ 268 (22 March 2006) (bailii.org)

This was a summary of the decision:

"122.  For these reasons we have reached the conclusion that connected lender liability under section 75 of the Act attaches to all transactions entered into using credit cards [my bold] issued under consumer credit agreements regulated by the Consumer Credit Act 1974, whether they take place within a three- or four-party structure and whether they are entered into in the United Kingdom or elsewhere [ my bold]. We therefore allow the appeal and dismiss the cross-appeal."


Whether that is still actually the case or not I don't know, but MSE seems to think so...

born_again

S75 would be possible so long as in the £100 to £30k item price range, excluding P&P.
Only issue would be the stated no refund by the retailer in their T/C. As that would mean no breech of contract. As that may well be legal in their local consumer standards.

Manxman_in_exile

I think you're right.

That C of A case does say that s75 applies to overseas contrcats, but it doesn't seem to address the issue of whether there would still be a valid s75 claim where T&Cs of the overseas contrcat would be unlawful in the UK but not unlawful in the overseas jurisdiction.

tightauldgit

Alderbank said:

Consumer law is different in the State of California.
By default, all purchases have a 30 day right to return unless the seller makes any restrictions clear at the point of sale.
So by telling you 'no refunds on final sale' they are exercising their right to exclude this category of goods from the 30 day right to return.

Maybe I'm being dumb and missing something but when I go to the website in question it seems to state that you are welcome to return things with a charge levied (for the UK it was £8) but that there is no right to return items like underwear which would just be the same with UK consumer law anyway. 

I can't see anywhere where it says 'no refunds on final sale' is the general policy.

Manxman_in_exile

Is this it?

I bought something on Final Sale but I really want to return it. Can I still do that? – U.S. Help Center (everlane.com)

Alderbank

I can't see anywhere where it says 'no refunds on final sale' is the general policy.

I'm sure 'No refunds' is not their general policy. For most of the items for sale on Everlast.com, buyers have the standard 30 day right to return (equivalent to our 14 day right in the UK).
However some items in the sale section carry a warning.
For example, an item I picked at random, Rigid Way-High Jeans 'say goodbye to your belly button', reduced from £104 to £31, says in the description 'Final Sale No returns or exchanges.'
Further, next to the 'Add to Bag' button, in says in red text 'No returns or exchanges on final sale.'

https://www.everlane.com/products/womens-rigid-way-high-jean-splatter?collection=womens-deepest-discounts

That seems to meet the State of California's requirement for waiver.

tightauldgit

Alderbank said:

I can't see anywhere where it says 'no refunds on final sale' is the general policy.

I'm sure 'No refunds' is not their general policy. For most of the items for sale on Everlast.com, buyers have the standard 30 day right to return (equivalent to our 14 day right in the UK).
However some items in the sale section carry a warning.
For example, an item I picked at random, Rigid Way-High Jeans 'say goodbye to your belly button', reduced from £104 to £31, says in the description 'Final Sale No returns or exchanges.'
Further, next to the 'Add to Bag' button, in says in red text 'No returns or exchanges on final sale.'

https://www.everlane.com/products/womens-rigid-way-high-jean-splatter?collection=womens-deepest-discounts

That seems to meet the State of California's requirement for waiver.

A-ha! Well spotted. 

eskbanker

Manxman_in_exile said:

I think you're right.

That C of A case does say that s75 applies to overseas contrcats, but it doesn't seem to address the issue of whether there would still be a valid s75 claim where T&Cs of the overseas contrcat would be unlawful in the UK but not unlawful in the overseas jurisdiction.

FOS have made it clear that (as far as they're concerned) it's the law of the contract that applies when deciding S75 claims:

If Ms G had bought the goods in England in a contract to which English Law applied, then she might well have had a remedy against both the seller and Halifax. The English courts have decided that the principle of section 75 applies to a transaction which occurs abroad. However, in deciding whether there has been a breach of contract or misrepresentation for which the creditor is equally liable with the seller, the law of the contract will apply.

The conditions printed on the sales invoice say that Turkish law is to apply to the contract. 

https://www.financial-ombudsman.org.uk/decision/DRN7177178.pdf