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

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  • eskbanker
    eskbanker Posts: 36,993 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    msnatalie said:
    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.
    You're not going mad - your consumer rights are with the retailer, and what does or doesn't happen further back in their supply chain doesn't impinge on those....
  • RefluentBeans
    RefluentBeans Posts: 1,154 Forumite
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    Who was the reseller? It may be useful to look to see what their t/c’s say and see if they’re just acting as a trading name for Apple (I really doubt it, but can double check). 

    In my head, Apple here acts as the manufacturer. If you buy a jumper from Primark and want to return it, they don’t go ‘we have to wait to see what our suppliers say’. I think because Apple is a known name it’s likely they just don’t want to deal with you and trying to push it to Apple (who you have no consumer rights with, unless the reseller is just a subsidiary of Apple).
  • msnatalie
    msnatalie Posts: 21 Forumite
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    edited 8 August 2023 at 10:28PM

    Who was the reseller? It may be useful to look to see what their t/c’s say and see if they’re just acting as a trading name for Apple (I really doubt it, but can double check). 
    Here are the reseller t&c's https://www.krcs.co.uk/terms-and-conditions . Couldn't see anywhere that they are acting as a trading name for Apple. Although did find that their link to an online dispute resolution does not include the UK and so can't be used to dispute them.
    eskbanker said:
    You're not going mad - your consumer rights are with the retailer, and what does or doesn't happen further back in their supply chain doesn't impinge on those....
    RefluentBeans said:

    In my head, Apple here acts as the manufacturer. If you buy a jumper from Primark and want to return it, they don’t go ‘we have to wait to see what our suppliers say’. I think because Apple is a known name it’s likely they just don’t want to deal with you and trying to push it to Apple (who you have no consumer rights with, unless the reseller is just a subsidiary of Apple).
    Thank you, this i what I would have thought also. Apple also again reiterated the same line when I spoke with them that it’s the resellers responsibly to escalate with Apple and not mine to accept a less than pristine new Macbook.
    I wonder if the reseller is hoping I will just give up as time passes as I have no laptop and they are keeping my money I'd use for a new one, or that I take them to small claims court, which I would really rather not at all.
    Any advice on how I should/could proceed with this? Apart from the obvious of telling them my consumer rights are with them and not Apple again, this is what I already said 'As there was a problem with the goods when I bought them, with krcs being the point of purchase, I request that you give me a full refund.'

  • At this point I would contact your card provider OP and request a chargeback. :) 
    In the game of chess you can never let your adversary see your pieces
  • Alderbank
    Alderbank Posts: 3,887 Forumite
    Eighth Anniversary 1,000 Posts Name Dropper
    The hold-up seems to be because krcs are waiting for their supplier (Apple) to confirm something or other about the scuff mark.
    The CRA does allow them to investigate the allegation of a fault and does not specify a time limit as such. However it does not give the trader carte blanche to delay as long as they want.

    The OP might wish to remind the trader that s118 of the Explanatory Notes to CRA 2015 which form part of the Act says:

    Subsection (15) requires a trader to provide any refund due to the consumer without undue delay and at the latest within 14 days from when the trader agrees that the consumer is entitled to it. For example, if a consumer rejects goods because of a technical fault which cannot be seen without testing or detailed examination, the 14-day period would start once the trader had carried out the appropriate tests and found the goods were indeed faulty. In contrast, if it was clear from looking at the goods that they breached the relevant requirement under the Act, there is unlikely to be any reason for the trader not to agree immediately that the consumer is entitled to a refund. In any case, there must be no undue delay, so the trader could not delay payment unnecessarily, for example in order to wait for time-consuming tests which are completely irrelevant. 

    Scuff marks would be an absolute textbook example of where it was clear from looking at the goods.

    It doesn't matter to the consumer what the manufacturing process failure was which led to the breach.
  • [Deleted User]
    [Deleted User] Posts: 0 Newbie
    100 Posts Second Anniversary Name Dropper
    edited 8 August 2023 at 3:16PM
    Be blunt with them. Tell them you’re rejecting the item and are cancelling the contract under distance selling, and want a full refund, as per the law. Anything else they come out with is just obfuscating waffle; they’re trying to fob you off and you need to nip it in the bud before it gets dragged out. Tell them if they don’t refund today, you’ll initiate a chargeback tomorrow (and do it), and are willing to take it further to small claims.

    Their insistence that the item is customised and waives your rights is bull. If you had had it engraved with your name, painted a specific colour, keys made from unicorn bones, and so on, that would be considered bespoke. What you have is an off the shelf product with some upgrades, none of which would prevent the item being sold to somebody else.

    Thing is, the basic models are so basic, any normal user would be adding upgrades by default; even the iMacs, low memory, tiny hard drive, no Ethernet port. That’s three things I’d be adding in straight away just for basic usage. I can’t imagine a court would rule I’ve lost my consumer rights just because I added in an Ethernet port, that’d be crazy.
  • RefluentBeans
    RefluentBeans Posts: 1,154 Forumite
    1,000 Posts First Anniversary Name Dropper
    edited 12 May at 3:26PM
    Be blunt with them. Tell them you’re rejecting the item and are cancelling the contract under distance selling, and want a full refund, as per the law. Anything else they come out with is just obfuscating waffle; they’re trying to fob you off and you need to nip it in the bud before it gets dragged out. Tell them if they don’t refund today, you’ll initiate a chargeback tomorrow (and do it), and are willing to take it further to small claims.

    Their insistence that the item is customised and waives your rights is bull. If you had had it engraved with your name, painted a specific colour, keys made from unicorn bones, and so on, that would be considered bespoke. What you have is an off the shelf product with some upgrades, none of which would prevent the item being sold to somebody else.

    Thing is, the basic models are so basic, any normal user would be adding upgrades by default; even the iMacs, low memory, tiny hard drive, no Ethernet port. That’s three things I’d be adding in straight away just for basic usage. I can’t imagine a court would rule I’ve lost my consumer rights just because I added in an Ethernet port, that’d be crazy.
    100% agree with this. The customisation argument is not even legally grey to me - it’s just unlawful. I would cancel the contest personally. And I agree, chargeback and/or go through small claims. Given this is not a small purchase, and their argument is meritless (after you cancel the contract) then I expect the second they ask their lawyers/legal representative for what to do you’ll get an email apologising for the error. And if not, it should be a fairly low bar to prove there was no customisation. 
  • born_again
    born_again Posts: 20,327 Forumite
    10,000 Posts Fifth Anniversary Name Dropper
    msnatalie said:
    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.

    Thanks for the update on the memory 👍

    Apple are very good at saying this, when they did not sell products, but will not put anything in writing. As they are shooting themselves in the foot.
    Life in the slow lane
  • msnatalie
    msnatalie Posts: 21 Forumite
    Fifth Anniversary 10 Posts Name Dropper Combo Breaker
    edited 12 May at 3:26PM
    [Deleted User] said:

    Their insistence that the item is customised and waives your rights is bull. If you had had it engraved with your name, painted a specific colour, keys made from unicorn bones, and so on, that would be considered bespoke. What you have is an off the shelf product with some upgrades, none of which would prevent the item being sold to somebody else.

    100% agree with this. The customisation argument is not even legally grey to me - it’s just unlawful. I would cancel the contest personally.
    Even with the clause in their terms and conditions that 'configured to order macs do not benefit from the 'cooling-off’ period...' does that not cover them there and so not allow me to cancel the contract? As adding the extra memory is classed by them as configured to order. Although that should have no bearing on my consumer rights in this case as it arrived damage, if they would just honor that. But initially that is the part of the terms that they referred me to as to why they were refusing to refund or replace.

    Alderbank said:

    The OP might wish to remind the trader that s118 of the Explanatory Notes to CRA 2015 which form part of the Act says:
    Subsection (15) requires a trader to provide any refund due to the consumer without undue delay and at the latest within 14 days from when the trader agrees that the consumer is entitled to it. For example, if a consumer rejects goods because of a technical fault which cannot be seen without testing or detailed examination, the 14-day period would start once the trader had carried out the appropriate tests and found the goods were indeed faulty. In contrast, if it was clear from looking at the goods that they breached the relevant requirement under the Act, there is unlikely to be any reason for the trader not to agree immediately that the consumer is entitled to a refund. In any case, there must be no undue delay, so the trader could not delay payment unnecessarily, for example in order to wait for time-consuming tests which are completely irrelevant. 

    Scuff marks would be an absolute textbook example of where it was clear from looking at the goods.

    It doesn't matter to the consumer what the manufacturing process failure was which led to the breach.
    Thank you for this! It's a good point and I will include it in my email to them. Although do they then have the option to come back to me and say as it wasn't a technical fault (it's cosmetic damage) and so not relevant.

    Thank you all for your replies, I really appreciate it, I will be contacting my bank tomorrow to start a chargeback, hoping the reseller won't reject that or make it difficult.
  • RefluentBeans
    RefluentBeans Posts: 1,154 Forumite
    1,000 Posts First Anniversary Name Dropper
    edited 12 May at 3:26PM
    msnatalie said:
    [Deleted User] said:

    Their insistence that the item is customised and waives your rights is bull. If you had had it engraved with your name, painted a specific colour, keys made from unicorn bones, and so on, that would be considered bespoke. What you have is an off the shelf product with some upgrades, none of which would prevent the item being sold to somebody else.

    100% agree with this. The customisation argument is not even legally grey to me - it’s just unlawful. I would cancel the contest personally.
    Even with the clause in their terms and conditions that 'configured to order macs do not benefit from the 'cooling-off’ period...' does that not cover them there and so not allow me to cancel the contract? As adding the extra memory is classed by them as configured to order. Although that should have no bearing on my consumer rights in this case as it arrived damage, if they would just honor that. But initially that is the part of the terms that they referred me to as to why they were refusing to refund or replace.
    I personally don't think this is sufficient customisation under the  Back to my favorite analogy of the jumper. Consider the following:
    1. I am a retailer who advertises a jumper - a very nice jumper made from merino wool. I advertise all the features of the jumper - it keeps you warm. I buy, from my supplier, 4 sizes (S, M, L, and XL) in 2 different colours (orange and blue). It's a very nice jumper, that comes sealed from the factory in a box. 
    2. I offer the following 'customisations' to the jumper: the default size is small and in orange. But they can 'upgrade' to a larger size and to a different colour. I, in my terms, say that this is customised - so not refundable. 
    3. A customer buys the jumper but says they don't want it - the finish just wasn't up to their expectation (not technically faulty, but just not up to their standards for the price I was charging). I decline saying its a customised product. 
    Well I, the retailer, may be technically correct - the law may (or may not) agree that this is customisation - only a judge can make that judgement - the law states (in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, Part 3) that the part does not apply if: 'the supply of goods that are made to the consumer's specifications or are clearly personalised'. 

    I, the consumer, certainly doesn't think this is made to the customers specs and there is no clear personalisation. I didn't make the jumper, and I also didn't 'clearly' personalise it. A reasonable person wouldn't see that as a customisation or personilisation. Thus, I strongly believe that if it was taken to court the judge would side with you. FWIW - Apple allows its Macs to be returned, so they don't think its personalised to you...
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