Returning goods purchased online - return delivery costs

tightauldgit

the_lunatic_is_in_my_head said:

tightauldgit said:

the_lunatic_is_in_my_head said:

tightauldgit said:

It's based on transfer of risk in English law (and I presume the other UK countries have the same idea) - risk transfers from A to B at the point that the goods are in the physical possession of B, or an agent acting on their behalf such as a courier. It's the same principle in reverse when they deliver to you - until you actually have the item it's their responsibility but if you send a courier to pick it up then it transfers at the point the courier has it in their possession. 

Whether it's explicitly stated in consumer rights statute I'm not sure (it may well not be) but that's the underlying principle of law that would be applied to any dispute unless there's something to the contrary in the statute?

It's not state in the consumer regs regarding returns (passing of risk is defined for the trader delivering goods), I don't doubt "It's based on transfer of risk in English law" but can you provide a source?  

I think you might be looking for something that doesn't exist. As I said, if there is a legal dispute between Party A and Party B between whether a parcel has arrived or not then in the absence of a statute saying otherwise then there is a well-established principle of English law that tells us when risk passes from A to B. If you wish to say that in this situation the principle is different then I'm open to hearing the argument but you'd have to show something that says that this is indeed a special case.

 

I'm just looking for the source of the well established principle, it must be referenced somewhere  

Most Google results either refer to passing of risk under the CRA (which only applies to the trader on the way out to the consumer) or to the SOGA (of which the sections mentioning risk no longer apply to consumers purchasing goods due the introduction of the CRA).

I don't have anything to say otherwise, I just wouldn't like to tell someone the trader must refund within 14 days regardless without any caveat they may be responsible for risk where that is to be the case, but I can't include that caveat either as I don't know where to comes from. 

Basically it's a rainy day and I should be working but am procrastinating instead. 

A lot of the law isn't written down in statute that's the issue with asking for chapter and verse on a reference and hence why solicitors make so much money convincing others they know what they are talking about.  

But if you take it step by step: 

1. So we know from the CRA when ownership transfers to the consumer and we both agree on that. 

2. 'Returning' something would require transferring ownership back to the seller - do we agree on that? 

3. By mirroring 1 we can see when transferring ownership back to the seller would occur. 

If it were otherwise you'd have the situation where the buyer could demand a refund from the seller, and compensation from the courier for their lost item if the return doesn't arrive.  

powerful_Rogue

I'm sure we all had the same debate a little while ago, with views from both sides but no conclusive answer!

the_lunatic_is_in_my_head

tightauldgit said:

A lot of the law isn't written down in statute that's the issue with asking for chapter and verse on a reference and hence why solicitors make so much money convincing others they know what they are talking about.  

My understand was this is referred to as common law or case law and is formed over time as courts make decisions creating precedents and there would be a record of such decisions.

From what I read the earliest of the concept of passing or risk in law was from Roman Law where risk passed immediately upon agreement of the sale. 

The CRA imposes protections for consumers, whilst I appreciate your mirroring theory is logical it does contradict the requirement under the CCR for the trader to refund within 14 days of having received evidence of the goods having been sent back regardless of the status of actual delivery.

tightauldgit said:

ETA: The bit you quote about 14 days relates to the timing of any refund due, not to the actual refund being due or not. 

That clause is for time but the refund is due, the trader may not withhold the refund beyond that time, the only reduction permitted is for diminished value but the EU guidance states:

Although Article 14(2) entitles the trader to hold the consumer liable for any diminished value of the goods caused by mishandling during the right of withdrawal period, under Article 13(3) the trader must reimburse the consumer after having received evidence that the goods have been sent back.

Meaning if the trader has not received the goods, consumer provides evidence of return and 14 days elapse the trader must refund and may not deduct for diminished value but instead recover that sum from the consumer after they have accessed such a reduction is permissible. 

That clause either implies the consumer doesn't bear the risk or it for the trader to suffer the burden of seeking their loses as an encouragement to collect the goods as soon as possible and have return under their full control, either of which could be correct or it may be something else.

You said there was a well-established principle of English law which means you must have learnt that at some point from somewhere?

If you are giving your interruption that's fine as we are all basically giving guidance but without some kind of substance (either legislation, case law or some other referenced legal principle) stating such as a fact seems somewhat artificial  

Manxman_in_exile

the_lunatic_is_in_my_head said:

This idea the party who pays for the courier bears the risk is confidently stated on here, I'm not disagreeing with it, I'm just asking what legal basis it has to better understand how it relates to the reimbursement requirements. 

I think it's simply derived from basic common law principles of contract law.  I generally* don't have a problem with the idea  although it would be nice to know if there was a decided case or whatever that was authority for it.  (I still have the 1976 edition of my contract law text book.  A quick look at the index tells me that nowhere in its 680+ pages does it mention passing of risk, transfer of risk, or even transfer of ownership...!)

(A bit off topic, but if you go over to the Consumer Action Group forum - National Consumer Service (consumeractiongroup.co.uk) - they claim to have successfully helped consumers claim against couriers (Evri is a favourite) for loss of and damage to parcels even though the consumers had no contractual relationship with the courier.  They claim on the basis of the Contracts (Rights of Third Parties) Act 1999 (legislation.gov.uk).  This is legislation I've never seen referred to on this forum, but I presume sometimes it might be preferable to sue the courier rather than the seller?  See also Contracts (Rights of Third Parties) Act 1999 - Wikipedia).


*Although I don't have a problem with it generally, I do agree that I think it is overridden by s34(5)(b) of the CCRs which I think means exactly what it says.   ie In the event of a consumer withdrawing from or cancelling a contract, the seller must pay a refund within 14 days of the consumer supplying evidence of sending the goods back.  The plain meaning of the words must be that a refund is payable by the seller, even if the goods are never actually received back by them, and even if the consumer paid for the return costs.

Manxman_in_exile

powerful_Rogue said:

I'm sure we all had the same debate a little while ago, with views from both sides but no conclusive answer!

Quite!    

saajan_12

the_lunatic_is_in_my_head said:

tightauldgit said:

the_lunatic_is_in_my_head said:

tightauldgit said:

It's based on transfer of risk in English law (and I presume the other UK countries have the same idea) - risk transfers from A to B at the point that the goods are in the physical possession of B, or an agent acting on their behalf such as a courier. It's the same principle in reverse when they deliver to you - until you actually have the item it's their responsibility but if you send a courier to pick it up then it transfers at the point the courier has it in their possession. 

Whether it's explicitly stated in consumer rights statute I'm not sure (it may well not be) but that's the underlying principle of law that would be applied to any dispute unless there's something to the contrary in the statute?

It's not state in the consumer regs regarding returns (passing of risk is defined for the trader delivering goods), I don't doubt "It's based on transfer of risk in English law" but can you provide a source?  

I think you might be looking for something that doesn't exist. As I said, if there is a legal dispute between Party A and Party B between whether a parcel has arrived or not then in the absence of a statute saying otherwise then there is a well-established principle of English law that tells us when risk passes from A to B. If you wish to say that in this situation the principle is different then I'm open to hearing the argument but you'd have to show something that says that this is indeed a special case.

 

I'm just looking for the source of the well established principle, it must be referenced somewhere  

Most Google results either refer to passing of risk under the CRA (which only applies to the trader on the way out to the consumer) or to the SOGA (of which the sections mentioning risk no longer apply to consumers purchasing goods due the introduction of the CRA).

I don't have anything to say otherwise, I just wouldn't like to tell someone the trader must refund within 14 days regardless without any caveat they may be responsible for risk where that is to be the case, but I can't include that caveat either as I don't know where to comes from. 

Basically it's a rainy day and I should be working but am procrastinating instead. 

If its idle curiosity then more power to you, but I don't think this is the crux of your issue? The transfer of liability is relevant eg if the item goes missing in the post then who loses out.

However in your case, the item has reached its destination so you are due a refund, the question is how much..
You do owe the 'postage costs' because they stated that postage would be deducted, but not how much. For that, it depends on whether you returned under their returns policy - then whatever it says in their T&Cs, or whether you returned under your statutory right to cancel - then the question is can they name their price for postage, or is there any 'reasonable' or 'actual costs' calculation. I don't know the answer to that, but just trying to steer. 

the_lunatic_is_in_my_head

Manxman_in_exile said:

*Although I don't have a problem with it generally, I do agree that I think it is overridden by s34(5)(b) of the CCRs which I think means exactly what it says.   ie In the event of a consumer withdrawing from or cancelling a contract, the seller must pay a refund within 14 days of the consumer supplying evidence of sending the goods back.  The plain meaning of the words must be that a refund is payable by the seller, even if the goods are never actually received back by them, and even if the consumer paid for the return costs.

Glad I'm not the only one I think it's intended to be taken narrowly and means exactly as is said.

Manxman_in_exile said:

I think it's simply derived from basic common law principles of contract law.  I generally* don't have a problem with the idea  although it would be nice to know if there was a decided case or whatever that was authority for it.  (I still have the 1976 edition of my contract law text book.  A quick look at the index tells me that nowhere in its 680+ pages does it mention passing of risk, transfer of risk, or even transfer of ownership...!)

(A bit off topic, but if you go over to the Consumer Action Group forum - National Consumer Service (consumeractiongroup.co.uk) - they claim to have successfully helped consumers claim against couriers (Evri is a favourite) for loss of and damage to parcels even though the consumers had no contractual relationship with the courier.  They claim on the basis of the Contracts (Rights of Third Parties) Act 1999 (legislation.gov.uk).  This is legislation I've never seen referred to on this forum, but I presume sometimes it might be preferable to sue the courier rather than the seller?  See also Contracts (Rights of Third Parties) Act 1999 - Wikipedia).

At a glance that third parties Act mentions third party rights where they are mentioned in the contract or the term purports to confer a benefit on him (I read the guidance notes too but still don't understand what that means). 

Are the Consumer Action Group winning cases in court (excluding by default) or is it the case the couriers simply pay out as it's the easiest/cheapest option to them regardless of the reasoning put forward by the other side? 

Not an area I'm overly familiar with regrading contract law, would passing of risk be an implied term through legislation or case law? 

powerful_Rogue

I'm still of the logic that if you pay for the return postage and the item is lost, then you claim from the courier.

Although it states that they must refund within 14 days of supplying evidence of returning goods, if no goods have been received then the diminished value will be a 100% reduction from the refund.

Otherwise people could claim a refund from the courier and also the retailer.

powerful_Rogue

I'm still of the logic that if you pay for the return postage and the item is lost, then you claim from the courier.

Although it states that they must refund within 14 days of supplying evidence of returning goods, if no goods have been received then the diminished value will be a 100% reduction from the refund.

Otherwise people could claim a refund from the courier and also the retailer.

the_lunatic_is_in_my_head

powerful_Rogue said:

I'm still of the logic that if you pay for the return postage and the item is lost, then you claim from the courier.

Although it states that they must refund within 14 days of supplying evidence of returning goods, if no goods have been received then the diminished value will be a 100% reduction from the refund.

Otherwise people could claim a refund from the courier and also the retailer.

Can only reference the above guidence again

Although Article 14(2) entitles the trader to hold the consumer liable for any diminished value of the goods caused by mishandling during the right of withdrawal period, under Article 13(3) the trader must reimburse the consumer after having received evidence that the goods have been sent back.

If the lost in transit issue was considered handling then there wouldn't be mention of a refund being due in either the guidance or the legislation, equally delivery not occurring within 14 days doesn't mean the goods have been lost in transit either.