Does an online sellers own terms invalidate the consumer rights act?

RefluentBeans

msnatalie said:

RefluentBeans said:

Out of curiosity - was there still cellophane on the box? Or the little pull tab thingy (below)?

oh, it didn't have cellophane, which I did wonder about but then read that Apple were starting to phase it out so thought nothing more of it. There were 2 green pull tabs, shown in the photo, its not very good as its a screenshot from a video (yes I embarrassingly videoed the unboxing, I was very excited), does that seem right?

The box did have some dirt/markings on it, but at the time thought nothing of it as assumed the macbook itself is fine and safe within the box. Interestingly the plug wasn't in it's hole properly and the charging cable holder was dented, also the wrapper around the macbook was wonky.

Potentially its fine - I got one of the last Intel MacBook Pro's from Apple and remember it still having cellophane, but I know since then, they have pushed to be greener (or at least appear to be going greener...). Did your video have you opening the seals? If it did, then there's absolutely no question that the product was received like that (in case they throw the 'how do we know you didn't do it' line at you). 

I would definitely go back and insist that you want to have a replacement. I think there's no doubt here that the product was purchased 'new' - so the expectation of any reasonable person is that there is no cosmetic damage. I think given that you did attempt to remove the mark, and that the box was sealed (and marks on the box) the device probably got dinged along the route. This would fall into the 'not as described' return reason for faulty goods (https://www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/return-faulty-goods/#:~:text=You'll have legal rights,t match the seller's description). 

The personalisation (or bespoke as it is officially known) does not apply - Apple allows returns of all products within 14 days (as per the CRA) and as the retailer isn't personalising the product for you, I think they'll have difficulty claiming the products bespoke and cannot be canceled. 

If they are not having any of it, you have 14 days from originally receiving the goods to cancel the contract. If you're nearing the end of that, then I would just cancel the contract and buy elsewhere. To cancel the contract send a templated letter (https://www.citizensadvice.org.uk/consumer/template-letters/letters/cancelling-goods-or-services/letter-to-cancel-or-return-goods-bought-online-over-the-phone-or-by-mail-order/). That at least stops the countdown from occuring.

To confirm, there are 2 ways you can return items I'm talking about:

1. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013: 14 days to cancel the contract (for items ordered online), for any reason. Exceptions are made for personalised and bespoke goods. Your product almost certainly doesn't fall into this category of personalisation.
2. Consumer Rights Act 2015: Within 30 days you can return the item for a refund/exchnage/repair (your choice, not theirs). This applies if the product is a) broken or damaged ('not of satisfactory quality'), b) unusable (‘not fit for purpose’), or c) not what was advertised or doesn’t match the seller’s description. You'd likely fall under the first or last category. This is regardless if they consider the item 'personalised'. 

I hope that's clear (Sorry for the long post - but the links to CAB may help a bit more, and the last section is the most important, and summarises everything I've been talking about). 

msnatalie

RefluentBeans said:

Did your video have you opening the seals? If it did, then there's absolutely no question that the product was received like that (in case they throw the 'how do we know you didn't do it' line at you).

  Thank you so much for all the info! It's been really helpful I am so grateful! Yes, I am opening the seals on the video, so that's at least something. The video does stop just before I open the macbook wrapper as i wanted to move the angle, but the time stamps are there that they were moments apart.

RefluentBeans said:

If they are not having any of it, you have 14 days from originally receiving the goods to cancel the contract. If you're nearing the end of that, then I would just cancel the contract and buy elsewhere. To cancel the contract send a templated letter (https://www.citizensadvice.org.uk/consumer/template-letters/letters/cancelling-goods-or-services/letter-to-cancel-or-return-goods-bought-online-over-the-phone-or-by-mail-order/). That at least stops the countdown from occuring.

The link leads to a 404 so i'm not entirely clear on what you mean by cancelling the contract? It's been back and forth with them for a week now, so the 14 days are ticking down. They keep getting back to me with 'our terms and conditions state..' and now 'we have to escalate it to Apple..' which from what i've spoken to with Apple shouldn't have anything to do with whether I am refunded/replaced or not, as they put it 'it’s their responsibly to escalate with Apple and not yours to accept a less than pristine Macbook'.
Do I have to send them a specific letter to stop the countdown? At the risk of sounding stupid, can it be an email?

[Deleted User]

They’re fobbing you off. Since you bought it online you’re covered by the distance selling regs; see pic below. You would be cancelling the contract that was formed under distance selling regs when they shipped the item on to you. Google it and you’ll be able to find a template or two to fiddle with and send to them cancelling the contract.

RefluentBeans

msnatalie said:

RefluentBeans said:

Did your video have you opening the seals? If it did, then there's absolutely no question that the product was received like that (in case they throw the 'how do we know you didn't do it' line at you).

  Thank you so much for all the info! It's been really helpful I am so grateful! Yes, I am opening the seals on the video, so that's at least something. The video does stop just before I open the macbook wrapper as i wanted to move the angle, but the time stamps are there that they were moments apart.

RefluentBeans said:

If they are not having any of it, you have 14 days from originally receiving the goods to cancel the contract. If you're nearing the end of that, then I would just cancel the contract and buy elsewhere. To cancel the contract send a templated letter (https://www.citizensadvice.org.uk/consumer/template-letters/letters/cancelling-goods-or-services/letter-to-cancel-or-return-goods-bought-online-over-the-phone-or-by-mail-order/). That at least stops the countdown from occuring.

The link leads to a 404 so i'm not entirely clear on what you mean by cancelling the contract? It's been back and forth with them for a week now, so the 14 days are ticking down. They keep getting back to me with 'our terms and conditions state..' and now 'we have to escalate it to Apple..' which from what i've spoken to with Apple shouldn't have anything to do with whether I am refunded/replaced or not, as they put it 'it’s their responsibly to escalate with Apple and not yours to accept a less than pristine Macbook'.
Do I have to send them a specific letter to stop the countdown? At the risk of sounding stupid, can it be an email?

Sorry link is: https://www.citizensadvice.org.uk/consumer/template-letters/letters/cancelling-goods-or-services/letter-to-cancel-or-return-goods-bought-online-over-the-phone-or-by-mail-order/ (If that doesn't work for some reason, Google 'Letter to cancel goods bought online' and there should be a Citizens Advice link near the top)

Their terms and conditions cannot ever take away from your rights, but can add to them. For example, most companies allow you to return a product for 'not liking it' for 30 days - this is on top of your consumer right to cancel. But they often do not mention your consumer rights (other than a throw away line like 'These do not affect your statutory rights') because the consumer rights can change (or because they want you to go through their returns rights, and ignore your consumer rights, depends how cynical you are...). 

They can escalate to Apple all they want, your rights are with the retailer. I would imagine its them claiming money back from the manufacturer, but that's not your concern. The letter to cancel means that you do not want the product, and that your canceling the contract. This can be delivered via email, just be sure to say you're canceling the contract (not just returning the product). 

Apple, for all their faults, are typically quite good within the first year of purchase, and at least have physical stores you can go to and speak to someone about an issue. As an aside, if you can afford it, I would get AppleCare - it gives you peace of mind if anything goes wrong and I think its for 3 years (but may only be for 2, so double check). 

the_lunatic_is_in_my_head

Okell said:

born_again said:

Retailer has the right to repair, replace or refund. Their choice. They have chosen repair...

Slightly off topic - and I'm sure it's been discussed before - but can somebody remind me where the proposition comes from that the retailer has "the right" to choose between repair or replacement?

Under the legislation the trader doesn't have choices only obligations*, the consumer has the right to repair/replace and then the final right to reject/price reduction. 

*The trader can create a choice by simply refusing to repair/replace but as I've said before "Stating this idea that it's the trader's choice erodes the consumer's rights by making them believe it's OK for the retailer not to bother to repair/replace lessening the likelihood of the consumer challenging the trader's position and insisting upon their rights."

The trader doesn't have any choice over final right to reject/price reduction that's down to the consumer, although would require a difference in value between what was paid and what was received for there to be a value assigned to the reduction.

In general, in this case OP has the short term right to reject, the goods do not conform, the trader agreed (and even claims to have repaired the goods so there must have been an issue), it's very straightforward, other than the trader not wanting to refund.

tightauldgit

Okell said:

born_again said:

Retailer has the right to repair, replace or refund. Their choice. They have chosen repair...

Slightly off topic - and I'm sure it's been discussed before - but can somebody remind me where the proposition comes from that the retailer has "the right" to choose between repair or replacement?

I'm probably reading it wrong but the legislation seems to me to be saying that the consumer has the right to ask for either a repair or a replacement, and they should get whichever they ask for unless (a) the one they ask for is impossible or (b) the one they ask for is disproportionate compared to the other.

That might mean that the trader is in a position to decide that one is impossible or disproportionate to the other, but that doesn't seem to me to be the same as saying that they have "the right" to decide?

Really just depends how you read it - it really is quite a badly written document when you look at the details, isn't it.

'Repair or replace' is completely ambiguous in the text. You can read "a consumer’s right to insist on repair or replacement" as a consumer has a right to insist the supplier either repairs or replaces it (suppliers choice) or the consumer can either insist on a repair or insist on a replacement (consumer's choice).

In practical terms though the supplier is going to decide whether they are able to repair it or its worthwhile repairing it or they'd rather replace it or just refund you. 

In the OP's case I don't know if a court would be convinced that 'there was a mark on the case, and they cleaned it off' would be sufficient to justify suing them for a completely new unit. It would certainly seem disproportionate to me if everything else was in order, but I also appreciate that there's a bit of a question mark as to HOW a supposedly brand new item got marked.  

born_again

msnatalie said:

RefluentBeans said:

Out of curiosity - was there still cellophane on the box? Or the little pull tab thingy (below)?

oh, it didn't have any cellophane, which I did wonder about but then read that Apple were starting to phase it out so thought nothing more of it. There were 2 green pull tabs, shown in the photo, its not very good as its a screenshot from a video (yes I embarrassingly videoed the unboxing, I was very excited), does that seem right?



The box did have some dirt/markings on it, but at the time thought nothing of it as assumed the macbook itself is fine and safe within the box. Interestingly the plug wasn't in it's hole properly and the charging cable holder was dented, also the wrapper around the macbook was wonky.

Not sure if there's anyway to prove it wasn't new.

You mentioned that it was customised with more memory. So they would have to open the box to add extra memory.

RefluentBeans

born_again said:

msnatalie said:

RefluentBeans said:

Out of curiosity - was there still cellophane on the box? Or the little pull tab thingy (below)?

oh, it didn't have any cellophane, which I did wonder about but then read that Apple were starting to phase it out so thought nothing more of it. There were 2 green pull tabs, shown in the photo, its not very good as its a screenshot from a video (yes I embarrassingly videoed the unboxing, I was very excited), does that seem right?



The box did have some dirt/markings on it, but at the time thought nothing of it as assumed the macbook itself is fine and safe within the box. Interestingly the plug wasn't in it's hole properly and the charging cable holder was dented, also the wrapper around the macbook was wonky.

Not sure if there's anyway to prove it wasn't new.

You mentioned that it was customised with more memory. So they would have to open the box to add extra memory.

No - this is is not the case. The memory is on the chip. This ‘upgrade’ is not a customisation like they’re claiming. They have a bunch of machines with different specs on them. This would be like ordering a laptop with a Intel i7 vs a laptop with an Intel i5 cpu; or in a non-comp analogy- like ordered a jumper in orange vs blue. The retailer buys the products in those memory allocations already made. There is no customisation (unless you think specifying a colour of a jumper is sufficient customisation). 

msnatalie

born_again said:

You mentioned that it was customised with more memory. So they would have to open the box to add extra memory.

As far as I am aware, the customisation is done on the Apple factory line as once put together Macbook Pros can't then be upgraded with extra ram. They told me it came new directly from the Apple factory in China.

msnatalie

Thank you all so much for your help on here!
For anyone following along, I did send yet another email to them reminding them about the consumer rights act, reiterating I want a refund and with some very helpful input from your answers on here outlining my rights.
They replied that only once Apple has confirmed that they are willing to accept the return they can proceed and I will have to wait. Am I going mad or are they just fobbing me off and running down time whilst keeping my money, if anyone has any experience with apple resellers? I was under the impression, especially after the discussions on here that as the reseller is the point of purchase, it is their responsibility to refund and not Apples? Apple already told me if I had bought direct from them there would be no issue returning it.