Distance selling and marked goods

CuriousConsumer85

Hi there MSE Forumites,

A friend purchased swimwear from an online company.  Their terms and conditions state “If you are not happy with your order, you can return it for a full refund (minus shipping paid) within 14 days of receipt, provided your order was not purchased in the sale (sale items are eligible to be returned for store credit only). In order to be eligible for a return, items must be unused, unstained and with all labels and tags in tact. All returned items go through a rigorous check process. If any marks (e.g. deodorant, bodily fluids, fake tan, make-up), stains or signs of wear are identified the item will be returned to the customer without a refund. The customer is liable for the cost of return shipping, please maintain proof of postage in the event of an issues or delays.”

On return of one of the items purchased, the customer service rep for company responded that one of the returned tops had a mark on it “which means they do not quality for a refund” and offered to send a photo.  The photo of the “mark” was sent with an email that acknowledged “it is very hard to see but there are white stains all over the top and we are unable to resell this item”.  The “white stains” look like deodorant marks which could be easily removed.  In accordance with the company’s own terms and conditions, they offered to return the item to my friend, but would not provide the refund (i.e. the company purported to retain the full price of the item).

While the swimwear company's terms and conditions are clear, given the sale was made online, the sale is subject to the distance selling regulations.  Under Regulation 34(9) of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, a trader may only make a deduction from the amount of a refund up to the contract price where the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods.  Regulation 34(12) provides that, for the purposes of paragraph (9) "handling" is beyond what is necessary to establish the nature, characteristics and functioning of the goods if, in particular, it goes beyond the sort of handling that might reasonably be allowed in a shop. 

The owner of the swimwear company has also responded (as part of a longer missive) saying they are aware of the distance selling regulations and they are happy to comply with their obligations but “That being said, should items be returned to us with stains or marks rendering them unwearable and unsellable to another customer, that item is no longer eligible for a refund.  In the same way that were you to take an item back to a high street store with make-up marks on it, for example.  I am not imposing any unreasonable terms whatsoever, I am merely adhering to our clear returns policy which prevents the return of marked goods”.  Someone else has had a similar issue and has posted on Trust Pilot (with a similar response from the owner).

I disagree with the owner’s analogy here (she refers to taking an item back to a shop – which overlooks the inspection and trying on process you might undertake before purchasing) and this undermines the “try before you buy” opportunity - which is what the distance selling regulations is seeking to preserve.  Had my friend seen the item in a high street shop, she would have had the opportunity to inspect and try on the item without obligation or purchase – here she has essentially been charged £45 for trying the item on.  The company claims the item cannot be sold due to the marks but it could be sold as a second or used as a sample in a pop up shop.  I would say that the value being fully diminished is incorrect and their terms and conditions allow them to withhold the full amount irrespective of the extent of any "damage" to the item.  It's also worth noting that the particular item in question has to go on over your head, and so normal handling could result in some marks (which, in the case of deodorant marks, could be easily removed).

I am frustrated that the company has the final word here and can continue to enforce its terms and conditions over the regulations.  Are these terms and conditions a breach of the distance selling regulations? 

Grateful for your views.

user1977

What makes you think the company has the final word? It's the courts which have the final word, surely?

CuriousConsumer85

This is true... however I suspect many either don't know their rights under the regs or are unwilling to continue to argue over it.  The company has retained the money paid and the garment (until they return it to you - despite it being unwanted) and they rely on people giving up the argument. 

MattMattMattUK

CuriousConsumer85 said:
I disagree with the owner’s analogy here (she refers to taking an item back to a shop – which overlooks the inspection and trying on process you might undertake before purchasing) and this undermines the “try before you buy” opportunity - which is what the distance selling regulations is seeking to preserve.  Had my friend seen the item in a high street shop, she would have had the opportunity to inspect and try on the item without obligation or purchase – here she has essentially been charged £45 for trying the item on.  The company claims the item cannot be sold due to the marks but it could be sold as a second or used as a sample in a pop up shop.  I would say that the value being fully diminished is incorrect and their terms and conditions allow them to withhold the full amount irrespective of the extent of any "damage" to the item.  It's also worth noting that the particular item in question has to go on over your head, and so normal handling could result in some marks (which, in the case of deodorant marks, could be easily removed).

A shop does not have to allow someone to try on clothes, I very much doubt that any would allow someone to try on swimwear, the same as the do not allow underwear to be tried on. If the consumer has "damaged" the goods the retailer can proportionately reduce the refund, by up to 100%, generally the reduction is at their discretion, but for marked clothing they will sell in bulk by weight, for swimwear which falls under hygiene the same as underwear they may just write it off as rags and so get a few pence per kg at most. 

CuriousConsumer85 said:I am frustrated that the company has the final word here and can continue to enforce its terms and conditions over the regulations.  Are these terms and conditions a breach of the distance selling regulations? 

As 1977 the courts are the final arbiter, not the retailer, but I do not think the regulations are on your side here. 

Manxman_in_exile

[Edit: cross-posted with MattMattMattUK]

@CuriousConsumer85 -  assuming this is a distance sale and the contract cancellation provisions of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) apply you should point out to the seller that the terms of their own returns policy are legally irrelevant.

If you have already quoted the applicable parts of the Regulations to the trader - you refer to regs 34(9) and (12) - then all you can do is argue the toss with them as to what does or does not amount to diminished value and reasonable or unreasonable handling.  If you think you are right and they are wrong but they won't back down, you'd have to consider a s75 claim or chargeback or suing them...

(As an aside I'm a bit surprised they didn't try to exclude swimwear entriely from the right to cancel on hygiene grounds.  But even that might not have worked for them...)

Manxman_in_exile

MattMattMattUK said:

CuriousConsumer85 said:
I disagree with the owner’s analogy here (she refers to taking an item back to a shop – which overlooks the inspection and trying on process you might undertake before purchasing) and this undermines the “try before you buy” opportunity - which is what the distance selling regulations is seeking to preserve.  Had my friend seen the item in a high street shop, she would have had the opportunity to inspect and try on the item without obligation or purchase – here she has essentially been charged £45 for trying the item on.  The company claims the item cannot be sold due to the marks but it could be sold as a second or used as a sample in a pop up shop.  I would say that the value being fully diminished is incorrect and their terms and conditions allow them to withhold the full amount irrespective of the extent of any "damage" to the item.  It's also worth noting that the particular item in question has to go on over your head, and so normal handling could result in some marks (which, in the case of deodorant marks, could be easily removed).

A shop does not have to allow someone to try on clothes, I very much doubt that any would allow someone to try on swimwear, the same as the do not allow underwear to be tried on. If the consumer has "damaged" the goods the retailer can proportionately reduce the refund, by up to 100%, generally the reduction is at their discretion, but for marked clothing they will sell in bulk by weight, for swimwear which falls under hygiene the same as underwear they may just write it off as rags and so get a few pence per kg at most. 

CuriousConsumer85 said:I am frustrated that the company has the final word here and can continue to enforce its terms and conditions over the regulations.  Are these terms and conditions a breach of the distance selling regulations? 

As 1977 the courts are the final arbiter, not the retailer, but I do not think the regulations are on your side here. 

[Edit:  I've now backtracked on this a bit.  See my post at 4:28pm]

Items can only be excluded from the right to cancel on hygiene grounds if they have been sealed for hygiene purposes*.  

And even if they've been sealed I believe there is a European case which has held that the exclusion does not apply if the once sealed goods can be "cleaned"(!).  (Or words to that effect.  I can't remember exactly.  It was mattresses).


*I have an interesting story involving M&S...

eskbanker

Manxman_in_exile said:

If you think you are right and they are wrong but they won't back down, you'd have to consider a s75 claim or chargeback or suing them...

Item value below £100 precludes s75:

CuriousConsumer85 said:

...she has essentially been charged £45 for trying the item on...

the_lunatic_is_in_my_head

OP can you post the name of the website please?

You say a refund minus shipping paid which is ambiguous, a proper look at their terms will decide whether they have any right to impose a deduction. 

Manxman_in_exile

eskbanker said:

Manxman_in_exile said:

If you think you are right and they are wrong but they won't back down, you'd have to consider a s75 claim or chargeback or suing them...

Item value below £100 precludes s75:

CuriousConsumer85 said:

...she has essentially been charged £45 for trying the item on...

If applicable didn't need to be said did it?         

sheramber

Why should the company sell it as 'second' goods or in a pop up shop?

They cannot sell it  in its present condition so the reduction in value is the full price.

if the stains are easily  removed by washing then ,when you get the item back, wash it and sell it on ebay.

the_lunatic_is_in_my_head

sheramber said:

Why should the company sell it as 'second' goods or in a pop up shop?

They cannot sell it  in its present condition so the reduction in value is the full price.

if the stains are easily  removed by washing then ,when you get the item back, wash it and sell it on ebay.

The legislation doesn't work in this manner.

It permits a reduction in the refund for diminished value due to excessive handling. 

The trader's ability to resell the goods simply doesn't come in to it. If a company wishes to trade at a distance they run the risk of having goods returned that can't be sold as new, if they don't wish to find an outlet for them that is their choice. It's not particularly difficult these days to sell used, or whatever you want to call it, goods, but it is more difficult than fobbing off the customer and hoping they don't know their rights