Stolen parcel left unattended by Royal Mail

Belenus

Teacholic , how did you pay for this item?

If by credit or debit card, you may be able to do a chargeback.

tightauldgit

the_lunatic_is_in_my_head said:

tightauldgit said:

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

You mentioned delivery (transport by courier) to a shed "would mean the trader and the consumer have agreed otherwise" and passing of risk wouldn't apply.

However even with delivery (transport by courier) to a shed delivery (voluntary transfer of possession from one person to another) would still occur.

The issue is with the word delivery being taken to mean transport by courier.  

That doesn't make sense to me - according to your reading 28.2 says 'it's assumed the goods will voluntarily transfer from buyer to seller unless the buyer and seller have agreed otherwise' which would be an odd clause to include because it would suggest that a buyer can enter into a contract to buy goods in which the seller doesn't transfer the goods to the buyer (which wouldn't even be a legal contract would it?). Or is it referring to buying the goods to be delivered to someone else? 

If it helps I agree with your reading of the CRA that at least on the face of it it would appear that the passing of risk is set in stone and a safeplace doesn't change that. However, a couple of online articles seem so sure of the opposite that it makes me think they must be reading something somewhere to come to that conclusion. Unless.... they are using the old SOGA definitions which might be looser - I haven't really looked.  

screech_78

Haven’t read every reply so forgive me if I mention something that’s already been said. 

I’m desperate for something like this to be taken to small claims (in my workplace anyway) so I can see what the outcome would be. 

For us as a retailer, our front line team will almost always push back on deliveries that have been made to a safe place and customer then reports them lost/stolen. I don’t agree with this and have refunded/replaced many that have came to our team where the courier has left the item without customers permission. However, I have pushed back when customer has stated a safe place (by going on the DPD app and asking it to be left in a specific place). There are times where I’ve completely believed the customer was genuine however and made an exception. Others, I’ve been absolutely sure the customer is trying it on. These ones, I would welcome court action to determine the right stance. 

For what it’s worth, retailers can very rarely make a claim against couriers. Evri and DPD will occasionally pay out but it’s a painful process. Royal Mail never pay out for a missing parcel. 

the_lunatic_is_in_my_head

screech_78 said:

Others, I’ve been absolutely sure the customer is trying it on. 

The issue here is that the legislation is written in a way that places this responsibility upon the trader themselves and if you or I as the owner of a business transport something to a customer we are going to make sure it's done correctly.

A date and likely time is going to be arranged to ensure the customer is home, we are going to be careful not to go to the wrong house and certainly won't leave the parcel somewhere we aren't happy with the risk of something happening to it, plus that face to face contact is likely to reduce a "normal" person from seeing it as victimless to make false clams. 

When you scale this up it becomes less possible to this so the owner passes it to an employee, who may care or may not but as a business you have a choice to pay good money for good staff or pay a bit less and take your chances. 

Scale it up again or sell at a long distance and a third party becomes the obvious solution, as with staff you can pay more for a decent courier or take your chances (although there doesn't appear to much choice, either due to a lack of competition or a lack of demand from retailers).

We've now come very far from the manner in which the legislation was written and it is that distance of difference that allows customers to try it on. If we go back to you and I transporting goods ourselves as the owner there is very seldom going to be an opportunity for a customer to try it on. 

Some may say the legislation should change to reflect the current market, some may say it should remain to protect the consumer as big business can afford the costs of risks that are their choice, ultimately it would depend on how the government would view how the effects of change would affect the economy (assuming they know or care about such an issue). 

the_lunatic_is_in_my_head

tightauldgit said:

the_lunatic_is_in_my_head said:

tightauldgit said:

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

You mentioned delivery (transport by courier) to a shed "would mean the trader and the consumer have agreed otherwise" and passing of risk wouldn't apply.

However even with delivery (transport by courier) to a shed delivery (voluntary transfer of possession from one person to another) would still occur.

The issue is with the word delivery being taken to mean transport by courier.  

That doesn't make sense to me - according to your reading 28.2 says 'it's assumed the goods will voluntarily transfer from buyer to seller unless the buyer and seller have agreed otherwise' which would be an odd clause to include because it would suggest that a buyer can enter into a contract to buy goods in which the seller doesn't transfer the goods to the buyer (which wouldn't even be a legal contract would it?).

It sounds odds to me as well but yes that is pretty much what it's saying if you take the meaning of the word from Section 59. 

Us lowly peasants are buying bread and milk or plastic tat from China, some people are buying, as consumers, priceless artwork and 300 million pound yachts, perhaps instances where voluntarily transfer of possession is specifically excluded isn't something that applies to the majority of us. 

Honestly I have no idea but will update on what CAB say as it will be interesting even if it doesn't help us!  

Teacholic

Belenus said:

Teacholic , how did you pay for this item?

If by credit or debit card, you may be able to do a chargeback.

I paid by debit card so don’t believe you can issue chargeback, only credit cards providers can issue that from what I know. 

the_lunatic_is_in_my_head

Teacholic said:

Belenus said:

Teacholic , how did you pay for this item?

If by credit or debit card, you may be able to do a chargeback.

I paid by debit card so don’t believe you can issue chargeback, only credit cards providers can issue that from what I know. 

Hello OP

Debit cards transactions are covered by chargebacks but if the retailer defends with proof of delivery it's likely to end up on their favour. 

The chargeback process is above consumer rights and bank won't get involved with all the variables we are discussing but will simply go off what the tracking says. 

Best bet is to send them the passing of risk clause posted here and advise the parcel was not delivered to you and they need to sort something out, either with the courier to locate the parcel or to replace/refund.  

Undervalued

the_lunatic_is_in_my_head said:

Teacholic said:

Belenus said:

Teacholic , how did you pay for this item?

If by credit or debit card, you may be able to do a chargeback.

I paid by debit card so don’t believe you can issue chargeback, only credit cards providers can issue that from what I know. 

Hello OP

Debit cards transactions are covered by chargebacks but if the retailer defends with proof of delivery it's likely to end up on their favour. 

The chargeback process is above consumer rights and bank won't get involved with all the variables we are discussing but will simply go off what the tracking says. 

Best bet is to send them the passing of risk clause posted here and advise the parcel was not delivered to you and they need to sort something out, either with the courier to locate the parcel or to replace/refund.  

Indeed.

However if the company refuse this then the OP will have to decide whether to risk the court fee and spend the time in taking this to court.

If they do the first thing the judge is going to have to decide, on the balance of probabilities, if he believes the OP's claim that they never received the parcel.

If he doesn't believe that then, in the real world, he is unlikely to look favourably on the technical argument that the company cannot prove that the goods had been correctly passed to the seller.

Most county court judges are very good at knowing whether they are being told the truth, they get plenty of practice! They also tend to have a strong sense of justice, They also know that their decisions are very unlikely to be appealed, partly due to the financial risks involved against the normally relatively low value of most claims. You cannot appeal just because you don't like the decision, unless it is so far off as to be perverse. Yes it can be appealed on a point of law but whilst there might well be one here, in most cases it is beyond a LIP and uneconomic and / or too risky to pay for representation in a higher court.

Hence all the speculation here about how these points might be interrelated but seemingly no case law to use as a guide.

the_lunatic_is_in_my_head

tightauldgit said:

It's interesting that the CAB disagree with the view here that a safe place doesn't satisfy the CRA - I wonder what they are basing that on?

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/if-something-you-ordered-hasnt-been-delivered/#:~:text="Under the Consumer Rights Act,I have not received it.”

However they certainly do appear to agree that in a case like the OP where you haven't told them to leave something in a safe place then it's the seller's responsibility.

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

Just to come back to this, CAB said discussing the specific definition of "physical possession", or any finer points of law, was outside their scope. 

In reference to their guidance they said the consumer's agreement to leave the goods in another place would be a new term of the contract. When I pointed out that passing of risk was liability that could not be excluded and falls within the "blacklist" of terms that are always unfair this too was outside of their scope. 

My issue with their guidance is that physical possession has to be within a set parameter, that may be your actual hands or something like your letter box, porch, shed, doorstep, or whatever, however given the inability to exclude liability I fail to see how the parameter of physical possession can be altered by the consumer's choice of opting for what would be an unfair term, (other than physical possession of another named by the consumer as this is specifically allowed under the legislation).  

Alas the debate rages on without any clarification. 

RefluentBeans

the_lunatic_is_in_my_head said:

tightauldgit said:

It's interesting that the CAB disagree with the view here that a safe place doesn't satisfy the CRA - I wonder what they are basing that on?

https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/if-something-you-ordered-hasnt-been-delivered/#:~:text="Under the Consumer Rights Act,I have not received it.”

However they certainly do appear to agree that in a case like the OP where you haven't told them to leave something in a safe place then it's the seller's responsibility.

ETA: Maybe Section 28.2 covers the safe place? 'Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer" - if you agree that the trader delivers the goods to your shed rather than you then I guess that would satisfy the law? 

Just to come back to this, CAB said discussing the specific definition of "physical possession", or any finer points of law, was outside their scope. 

In reference to their guidance they said the consumer's agreement to leave the goods in another place would be a new term of the contract. When I pointed out that passing of risk was liability that could not be excluded and falls within the "blacklist" of terms that are always unfair this too was outside of their scope. 

My issue with their guidance is that physical possession has to be within a set parameter, that may be your actual hands or something like your letter box, porch, shed, doorstep, or whatever, however given the inability to exclude liability I fail to see how the parameter of physical possession can be altered by the consumer's choice of opting for what would be an unfair term, (other than physical possession of another named by the consumer as this is specifically allowed under the legislation).  

Alas the debate rages on without any clarification. 

I think that’s the issue right - the law isn’t fit fit for purpose. Before pandemic when a parcel necessitated a signature so the delivery driver had to ring the bell and wait for the consumer to come and sign for it, there was the assumption that you’d be signing for that parcel (I also appreciate that some delivery companies were already moving to drop and run sort of models - especially like Amazon). Now with photos they can ring the bell, drop the parcel and photo - it makes it far quicker for the delivery company but doesn’t meet that obligation of the law. 

I suppose, looking through the lens of the delivery company having ‘safe’ spaces to drop the parcel is a no brainier - they waive their responsibility as they now can just deliver to a porch, they can take the photo and run. It means that they cant easily be held liable for not safely delivering the parcel, so it’s the retailer that absorbed the risk under the CRA. 

I think the law needs to be rewritten or at least updated - it’s not really fair that the retailer absorbs all the responsibility - it should be shared between at least the delivery company and the retailer. I don’t see the incidence of these types of issues going down, but only going up.