Distance selling and marked goods

CuriousConsumer85

@the_lunatic_is_in_my_head - I think that's OK as it's referring to your cost to return the item (i.e. they don't pay the cost of returns).  

Thanks @Manxman_in_exile - the position as you've described it is where we've got to - I was curious as to whether anyone has had any success in arguing what's reasonable handling vs the nature of this "damage".  

This particular item goes over the head (there's no other way to get it  so I don't think hygiene is at issue here (noting the offensive marks are deodorant!) and the items are hygiene sealed.

the_lunatic_is_in_my_head

CuriousConsumer85 said:

@the_lunatic_is_in_my_head - I think that's OK as it's referring to your cost to return the item (i.e. they don't pay the cost of returns).  

Thanks @Manxman_in_exile - the position as you've described it is where we've got to - I was curious as to whether anyone has had any success in arguing what's reasonable handling vs the nature of this "damage".  

This particular item goes over the head (there's no other way to get it  so I don't think hygiene is at issue here (noting the offensive marks are deodorant!) and the items are hygiene sealed.

Thanks OP, I appreciate you may not want to name the business so in general the trader has to provide you with:

(l)where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

27-38 is here:

https://www.legislation.gov.uk/uksi/2013/3134/part/3 

and if any of their terms fail to meet this they can't impose a reduction in value:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

(9) If (in the case of a sales contract) 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, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

Even In order to be eligible for a return, items must be unused, unstained and with all labels and tags in tact. does not comply with the regulations but it should be clarified if that is, for example, their company return policy and they also mention your right to cancel the contract somewhere else (such as the T&Cs page). 

CuriousConsumer85

Thanks @the_lunatic_is_in_my_head - that's helpful canon fodder.  

Their full returns policy is below.  Again, noting this is distance selling, can they exclude sale items from a refund?  

RETURNS

*Sale items are not eligible for a refund and can be exchanged for store credit only. 

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. 

Please follow the process on the returns form included within your parcel. Our returns address is: .... 

Please note that as much as we would love to, we do not cover the cost to return items to us - the customer is liable for this expense. We recommend getting a tracked service and retaining proof of postage. 

Whilst returns are usually processed in a timely manner, please allow up to 10 working days for funds to appear in your bank account. If you have not received it after this time please email ... and we will investigate. 

Unfortunately we do not offer exchanges due to fluctuating stock levels. If you wish to swap for another size, please order the revised size and return the original size for a full refund. 

the_lunatic_is_in_my_head

CuriousConsumer85 said:

Thanks @the_lunatic_is_in_my_head - that's helpful canon fodder.  

Their full returns policy is below.  Again, noting this is distance selling, can they exclude sale items from a refund?  

They can exclude sale items from their own policy in addition to your rights but they can't exclude them if you are exercising the right to cancel. 

I think I've found the website and if it is that company they can't impose a reduction because they link the right of return to the condition of the goods, exclude sale items, minus shipping paid does appear to relate to the outward shipping which isn't permitted so by my understand a full refund is due  

It would be worth double checking the order confirmation and dispatch email plus paperwork with the goods just to ensure nothing different is said about the right to cancel. 

Manxman_in_exile

The law does not say anything about excluding sale items from the right to cancel/refund.

Therefore they can't be excluded.  (Suggesting otherwise might even amount to an unfair practice and ciminal offence...)

Manxman_in_exile

I've just realised that the earlier post I made at 2:52pm following the post by @MattMattMattUK was possibly misleading or even wrong  ( )

Just to clarify, a trader selling goods at a distance can't just exclude items like underwear or earrings from the right to cancel on the grounds that it would be unhygienic to allow them to be returned.  They can only be excluded from the right to cancel if they have been sealed and they have become unsealed after delivery to the consumer.*

That doesn't mean the trader can't make a deduction from any refund for "excessive handling" that you couldn't do in a shop, but if the trader hasn't also given you the information specified in the regulations (and referred to above by the_lunatic) then they can't make a deduction at all.

*And there is a European Court decision basically saying that even where goods have been sealed to preserve "hygiene" you can still cancel if it would be possible to return the goods to their "pre-opened" state.  Or words to that effect.

Alderbank

@CuriousCustomer85, does the company have a registered address in the UK? You might need this.

How did your friend pay? Credit card, debit card, voucher, PayPal, Klarna, etc.?

CardinalWolsey

I presume this is the retailer with their T&Cs

https://tocoswim.com/pages/shipping-returns 

CuriousConsumer85

Alderbank said:

@CuriousCustomer85, does the company have a registered address in the UK? You might need this.

How did your friend pay? Credit card, debit card, voucher, PayPal, Klarna, etc.?

They do have a registered address in the UK.  It was paid for on credit card.

bris

The refund up to 100% for hygiene reasons springs to mind here, these will either be returned  to your friend or binned by them.

They are not going to wash them and try and sell them again, you would be disgusted if you found out you were getting rejected swimwear would you not?