Sofology Cancellation

Alderbank

The speculation between @the_lunatic_is_in_my_head and @tightauldgit  about what 'delivered' might possibly mean is very interesting.

However to return to topic, what Sofology themselves say in their T&Cs is:

If you're not at home when our drivers arrive, meaning we've been unable to make the delivery, we'll be more than happy to come back on another day, however you will need to pay for a second delivery (costing at least £99).

Is this specific contract term reasonable and therefore enforceable? or could it be considered an Unfair Contract Term?

the_lunatic_is_in_my_head

SofaSurfer008 said:

I think things have gone a little of topic here.

What I was really looking for was previous experience with Sofology or a similar company in similar circumstances.

I'm happy to engage in dialogue with Sofology on this but at the moment they are just pushing the standard  T's & C's.

What grates the most is if I had made zero attempt at engaging with the Store and simply ordered online or via the phone, there would be no issue. I would have been able to reject the goods for ANY REASON WHATSOEVER, irrespective of whether it would fit.

I feel like I'm been penalised for trying to mitigate a potential issue. 

Is it any wonder the high streets are losing out to online retailers?

As it is now I'm hoping common sense prevails.

Apologies for the debate @SofaSurfer008

It is true you have more rights when buying online to change your mind and is just the way it is really.

Generally if you breach the contract the trader can retain costs or loss of profit. They can only retain loss of profit where they can't lessen that loss by for example finding another customer.

With something like a hotel booking (as an example that is more commonly questioned here) that is perhaps more straightforward whereas with a sofa they could argue the person who buys yours would have brought one anyway so they are still out that profit element. 

The 40% is likely either costs or profit so they aren't, to my knowledge, doing anything wrong by imposing the fee. 

The measurements thing if written might give you some leverage but if it was all verbal it's a bit of he said/she said which is obviously harder to articulate (even on the balance of probability). 

I don't think they can charge you for delivering again but that doesn't really help with getting the sofa up the stairs  

Have you suggested buying a different sofa from them to see if they are more generous with something like store credit? 

In terms of ending the contract, that comes to the debate which I don't think you'll get an answer that can be relied up as none of know for sure  

the_lunatic_is_in_my_head

tightauldgit said:

You asked for a definition of what possession and control mean in legal terms and were given it from a reputable source. If that's not going to convince you of what the definition is then I don't really know what you were asking for other than just being argumentative.

Well it helps to quote the whole lot with a link

https://www.lexisnexis.co.uk/legal/glossary/possession-physical-versus-legal#:~:text=The elements normally associated with,to exclude strangers from interfering.

In English law, possession is treated not merely as a physical condition protected by ownership, but also as a legal right in itself. The presumption of law is that the person who has de facto possession also has the property, and accordingly such possession is protected, whatever its origin, against all who cannot prove a superior title.

Possession has various meanings in the law:

(1) “De facto possession” where possession means effective physical control or occupation, evidenced by an outward occasionally called or detention in contrast to the legal right to possession, and in which case, its determination is one of a matter of fact rather than law;

(2) “Legal possession” which is a type of possession recognised and protected by the law. The elements normally associated with legal possession are an intention of possessing together with an amount of occupation or control of the entire subject matter such that it is capable and sufficient for practical purposes to exclude strangers from interfering.

Legal possession is ordinarily associated with de facto possession and legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who has no de facto possession but having possession in law may be deemed to have constructive possession. Halsbury's Laws of England, 35 (4th), 1211.

I know what all those words mean but together as a statement I don't understand how that explains when delivery occurs for things you buy from a shop that are delivered to your home (either by the trader or their agent such as a courier). 

I'm not being argumentative at all and I would find the correct answer to the question genuinely interesting.

tightauldgit said:

Going by your suggestion of what delivered might mean there's no way for a customer to refuse delivery twice to do as you suggest - the supplier just brings the item to the door, leaves it there and it's 'delivered to the entrance of the property in the customers presence'.

Well if the customer doesn't answer the door the goods can't be left in their presence can they? 

If a trader leaves something on your doorstep whilst you are not at your door I would say those goods have not come in to your physical possession or control simply because you wasn't present. 

Some on here might say if a parcel is put through your letter box (obviously not one containing a sofa) or is left in a safe place of your (the consumer's) choice that this is physical possession and risk has passed, personally I disagree. 

For a parcel I would expect it to be in your hands, obviously you can't hold a sofa in the way you would a parcel so I don't know where the line is drawn but I don't think it's as generous as being in your living room with your bottom sitting on it  

Okell

the_lunatic_is_in_my_head said:

... Some on here might say if a parcel is put through your letter box (obviously not one containing a sofa) or is left in a safe place of your (the consumer's) choice that this is physical possession and risk has passed, personally I disagree...

Hypothetically I suspect the law would hold that anything delivered through a consumer's letter-box at their address is in their physical possession even if they aren't physically present at the time.  So long as it's through the letter-box at the address given by them I don't think it needs to be delivered into their hands, so long as it's under their control.

I suspect the law would see delivery to a "safe place" - even one chosen by the consumer - differently.  Personally, I'd never opt for delivery to a safe place - only to a nominated neighbour.

tightauldgit

Alderbank said:

The speculation between @the_lunatic_is_in_my_head and @tightauldgit  about what 'delivered' might possibly mean is very interesting.

However to return to topic, what Sofology themselves say in their T&Cs is:

If you're not at home when our drivers arrive, meaning we've been unable to make the delivery, we'll be more than happy to come back on another day, however you will need to pay for a second delivery (costing at least £99).

Is this specific contract term reasonable and therefore enforceable? or could it be considered an Unfair Contract Term?

I think it would depend on the specifics. is the customer allowed to select a delivery date and time or at least agree to it? How much notice are they given? Are they given a specific time slot or not. I think there's definitely ways in which it could be unreasonable. Whether it's unreasonable on its face is probably more arguable. You would think there would be some leeway for suppliers to recover their costs in a case where a customer has been negligent 

screech_78

Whilst you would have been able to cancel if you had ordered online, you would also have been responsible for the returns cost so I’m not sure you would have been any better off. 

I feel this would come down to a he said/she said and you would really need proof that Sofology said it would fit. 

cymruchris

Aside from the lengthy discussions around rights etc.- I can't see anywhere whether you're cancelling/discussing by contacting their general customer services by phone or email, or actually going back to the store.

I would hazard a guess that you're dealing with a central customer services.

Have you actually been back to the store, and spoken to the sales advisor that took your order and the store's manager? (Not in a confrontational way - but along the lines of 'I came in, we discussed it, I gave you all the details, you said it'd fit, and it doesn't' - to see whether face to face with the people that actually told you it would fit might have a bit more persuasion with the central customer services to actually say 'well we did actually say it would fit' - or something along those lines?)

I might have missed the fact that you've tried the above? but if you haven't - wouldn't this be worth a try?

the_lunatic_is_in_my_head

screech_78 said:

Whilst you would have been able to cancel if you had ordered online, you would also have been responsible for the returns cost so I’m not sure you would have been any better off. 

Cancellation of in store is 40%, online change of mind returns are 15% capped at £300 so there's a fair difference.

I'm not sure their information on returns and costs complies with the regs anyway and would suggest Sofology can't charge anything for returns when the consumer cancels the contract. 

screech_78

the_lunatic_is_in_my_head said:

screech_78 said:

Whilst you would have been able to cancel if you had ordered online, you would also have been responsible for the returns cost so I’m not sure you would have been any better off. 

Cancellation of in store is 40%, online change of mind returns are 15% capped at £300 so there's a fair difference.

I'm not sure their information on returns and costs complies with the regs anyway and would suggest Sofology can't charge anything for returns when the consumer cancels the contract. 

That’s fair enough. I didn’t dig deep enough into their terms and I could have guessed they wouldn’t have been compliant anyway. Of course, for customer to enforce their rights, they’re going to have to take legal action as I can’t see Sofology backing down quickly. 

JetpackVelociraptor

I run a furniture company, both trading standards and 2 sets of commercial law solicitors (our original firm retired) have checked out our terms and conditions and regarded our returns policy as enforceable. While we don't charge a % or anything like that, we do indeed charge a return fee for failed deliveries including deliveries that fair due to the product not fitting through the door, and this is for in store as well as online purchases. I have had a grand total of one person attempt to argue that a piece of furniture that's returned to the store has not been delivered and therefore can't be charged for the return, but as I pointed out to them at the time, had they wanted to have it left on the doorstep in the rain the option was there. It costs money to send people out to attempt a delivery, it's not reasonable to expect retailers to eat the cost when they're not at fault for the failure.

For OP's case, I do think the easiest route is going to be to talk to staff at their local sofology about choosing an alternative sofa that comes in sections, and see about getting a better offer for store credit. Otherwise their argument hinges on:

• them providing 100% accurate information regarding the measurements of the doorways, hallways, stairs width and height, and any other pinch points
• Sofology agreeing, preferably in writing somewhere, that their chosen sofa will definitely fit despite not having seen the delivery address in person

Unless OP works in a field where they have a good amount of practical experience in taking measurements it is going to look pretty plausible to a court that they did in fact make a mistake. It's not like they were trying to jam a 100cm sofa through a 50cm gap, there's a turn and a staircase involved. It's pretty rare in my experience for people to take accurate measurements in those circumstances, not unless you're literally telling them what to measure and how. Our solution for stuff like that is to either go around and check it ourselves if it's nearby, or ask the customer to do a video walkthrough and ask them to measure at specific points. It's pretty effective, but it doesn't sound like Sofology did any of that. So how could they have known it would fit?