Distance selling and marked goods

CuriousConsumer85

bris said:

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?

This has largely been covered above and swimwear usually has hygiene seals on the relevant parts.  The item in question is also a top, so I'd be less disgusted. 

If they are accepting returns of any items then there's a very reasonable assumption that you could be sent an item that has been tried on by someone else, rejected and returned.  Much like if you pick something up in a shop that's likely been handled by others and choose try it on (in my experience, you usually can try on swimwear).  Many people wash items as soon as they are purchased before they wear them for this very reason.  But I digress... 

the_lunatic_is_in_my_head

bris said:

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?

There isn't a "refund up to 100% for hygiene reasons", there is a limit of application to the right to cancel meaning where goods which are not suitable for return due to health protection or hygiene reasons which are sealed and become unsealed after delivery the right to cancel doesn't apply.

However in order to rely upon this the trader must advise: as part of the required information listed in Schedule 2:

(o)where under regulation 28, 36 or 37 there is no right to cancel or the right to cancel may be lost, the information that the consumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel;

and in this instance the trader hasn't done so (from the info on their site). 

As @Manxman_in_exile points out the CJEU ruling on the mattress case shows that the limit of application is to be interpreted narrowly and is to apply to goods which are impossible to resell as they may not be returned to their original state (pills in blister pack, toothbrushes, sanitary products, etc) rather than an item of clothing.

Another example of things becoming normalised through the actions of businesses and then accepted by the majority despite the law dictating the opposite.  

screech_78

Swimwear usually has a hygiene seal on the crotch area and if this is removed, you can’t return. I’ve seen some fairly grim swimwear and underwear returns in my time. 

Whilst I do think deodorant marks are pretty horrible and I wouldn’t send something back like that, I doubt their terms would stand up. But how far are you going to go to enforce it if they won’t play ball? 

CuriousConsumer85

screech_78 said:

Whilst I do think deodorant marks are pretty horrible and I wouldn’t send something back like that, I doubt their terms would stand up. But how far are you going to go to enforce it if they won’t play ball? 

Well, presumably they rely on people giving up and the business already has your money. What’s the point of consumer legislation if businesses continue to get away with enforcing terms that are inconsistent with statutory rights? 

The business’ initial response noted that the marks were very hard to see. 

Manxman_in_exile

bris said:

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?

But this is precisely why there are some things I most certainly will not buy online.

The downside of consumers having the right to send online purchases back is... that other consumers also have the right to send online purchases back.

And unless the items are "sealed", hygiene reasons don't enter into it.  (As I pointed out earlier)

registertocomment

Manxman_in_exile said:

bris said:

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?

But this is precisely why there are some things I most certainly will not buy online.

The downside of consumers having the right to send online purchases back is... that other consumers also have the right to send online purchases back.

And unless the items are "sealed", hygiene reasons don't enter into it.  (As I pointed out earlier)

Based on your comment I'd say it's fair to assume you're male. As a woman I have many a times tried on swimwear and underwear on in stores and it is certainly common to do so. I also see that the OP said the item of swimwear was a top which are never hygiene sealed etc. 

I think it's quite bad that they are refusing a refund when the likes of larger brands (ASOS for example) wouldn't bat an eyelid. 

CuriousConsumer85

registertocomment said:

I think it's quite bad that they are refusing a refund when the likes of larger brands (ASOS for example) wouldn't bat an eyelid. 

It's difficult to compare a small business with the likes of ASOS (and also without going into the morality of fast fashion etc).  I'm not condoning waste where a garment can't be re-sold etc, but I do think businesses (large or small) need to comply with the law and not, as @the_lunatic_is_in_my_head says, try to fob off consumers who do not know their rights at law.  My view is that the T&C's in this case are inconsistent with consumer legislation and seek to transfer too much risk to the consumer.

The top has now been returned to my friend and the marks are barely perceptible.  Prior to the garment being returned to her she was provided a photo with an acknowledgement that the marks were very hard to see and a video was then sent when the marks were disputed.  The filename for the video was marked "filtered" which suggests a filter was used to highlight the marks.   

tightauldgit

CuriousConsumer85 said:

screech_78 said:

Whilst I do think deodorant marks are pretty horrible and I wouldn’t send something back like that, I doubt their terms would stand up. But how far are you going to go to enforce it if they won’t play ball? 

Well, presumably they rely on people giving up and the business already has your money. What’s the point of consumer legislation if businesses continue to get away with enforcing terms that are inconsistent with statutory rights? 

The business’ initial response noted that the marks were very hard to see. 

The business is not necessarily being inconsistent with statutory rights - they are just taking a different view from you on what is excessive handling and I do have some sympathy with them on that front.

As with a lot of legislation once you start including subjective terms like 'excessive handling' it just opens up space for disagreement and then it's a case of whether it's worthwhile to try to make a claim for the amount at stake.  

CuriousConsumer85

tightauldgit said:

As with a lot of legislation once you start including subjective terms like 'excessive handling' it just opens up space for disagreement and then it's a case of whether it's worthwhile to try to make a claim for the amount at stake.  

The legislation does (at least try) to include an objective test as to what is "excessive handling": i.e. 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.  In the case of (women's) swimwear, it common practice to be able to try it on in a shop and a shop that doesn't allow this is probably going to suffer fewer sales.

Here's the "excessive handling" in this case: 
 

tightauldgit

CuriousConsumer85 said:

tightauldgit said:

As with a lot of legislation once you start including subjective terms like 'excessive handling' it just opens up space for disagreement and then it's a case of whether it's worthwhile to try to make a claim for the amount at stake.  

The legislation does (at least try) to include an objective test as to what is "excessive handling": i.e. 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.  In the case of (women's) swimwear, it common practice to be able to try it on in a shop and a shop that doesn't allow this is probably going to suffer fewer sales.

Here's the "excessive handling" in this case: 
 

All that really does is attempt to clarify a subjective test with more subjective language. I can honestly say that I don't know what the rules are if you damage something in a shop when trying it on. What was the reason for the return incidentally, didn't fit?