Do I have a right to refund if I lost the tags of the item but it was not the right size for online?

GervisLooper

the_lunatic_is_in_my_head said:

GervisLooper said:

Thanks for the replies. Still unclear on where I stand though really.

You have the right to a refund.

They have the right to impose a deduction for the removal of the tags.

To have that right to a refund the legislation requires you to "make any other clear statement setting out the decision to cancel the contract" which is why I suggested the above email  

The mistaken message about waterproofing isn't here nor there IMO, you sent it and then withdraw it plus your first communication (via their returns system) stated change of mind so I wouldn't focus on it, or even acknowledge it. 

Thanks for your patience. I reread your posts as well as their terms and the right to refund information online and it became much clearer.

I sent the email yesterday and I just read an email stating they will not refund me here it is

Hi X,

As per the returns details that are provided on our website we do state quite clearly the terms for returning items for a refund. Please see the link below -

https://www.militarykit.com/pages/delivery-returns

I'm afraid as stated previously, we do not reimburse items that have been returned without their tags. We need to sell this garment as a New item and it has been returned back with no tags/original bag. I am sure that you would expect to receive a item ordered as New is such a manner. I will therefore be returning your jacket back to you and issuing the refund for the trousers that were returned tagged and bagged.

Kind regards, Sarah

From what I read since I should still ask for a refund but agree to a reduction based on the excessive handling?

On https://www.militarykit.com/pages/terms-conditions page it states

" We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of unnecessary handling by you." So does that mean they are legally bound to abide by it or not?

I have just replied

As per the legislation, and also the terms listed on your website here https://www.militarykit.com/pages/terms-conditions

Effects of cancellation

If you cancel this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).

We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of unnecessary handling by you.

I should still be entitled to a refund based on the right to cancel as excessive handling is mentioned in the conditions, which the removal of tags would fall under. I accept that having removed the tags is less than ideal and as such would accept a reduced amount of refund that we would both find acceptable under the excessive handling clause.

I dont want to be disagreeable for the sake of it but feel that no refund at all is unfair given that the jacket is in perfect condition despite the tags being missing.

Is it up to them whether they refund me or do they have to do it under law? Not too clear on that.

Reading around the subject I saw it even cite damage from wear like broken soles which is much more than the condition I sent the jacket back, with people still getting a refund. The question though, as above is whether I have a legal right to the refund or whether it is still at the sellers discretion.

I was just doing some research on right to return without tags and tkmaxxes terms came up stating -

If you use the item or remove / tamper with the tags, you will lose your right to return the goods under our returns policy.

Different company but a big one at that so I assume they would not put faulty information there. If it is a fair cop and I dont have any legal right to ask for it then fair enough but since it is £50 odd quid, not an nontrivial amount I want to exercise any right I may have, if indeed I do have any, to a refund.


Also just found this which the accepted answer says it would be unnecessary handling for a very similar case yet the seller could claim up to 100% reimbursement for that handling so then it would still be at their discretion how much they will refund?

the_lunatic_is_in_my_head

GervisLooper said:

Is it up to them whether they refund me or do they have to do it under law? Not too clear on that.

They have to refund by law

Most places have a returns page that details the company policy, perhaps with a longer timeframe (30/60 days) or something like free returns but often with the trade off that the goods must be unused, etc, which is all perfectly fine.

Then most places detail the right to cancel in the general Terms & Conditions page and that must mirror the legislation. Here instead of stating the goods must be unused, etc they need to mention the reduction in the refund instead.

What's odd about this company is they've given you 60 days for both but it is what it is. 

They've link to their own policy so it's good you've gone back and linked to your rights as they've detailed on their own site. 

GervisLooper said:
seller could claim up to 100% reimbursement for that handling so then it would still be at their discretion how much they will refund?

The reduction may be up to 100% but it has to represent the actual diminished value, so a jacket with one of the arms missing probably 100%, missing tags perhaps 20% IMHO. 

This situation could be made more complicated by me asking if they gave you a copy of the right to cancel info plus a copy of the model cancellation form either by email (excluding links to their website) or on paper with the goods as without this you wouldn't be bound by the contract but I think the easiest way forward is to get them to acknowledge your right to cancel, they impose a fair deduction leaving you with hopefully around £40 refunded out of the £50. 

Keep us updated if you can, fingers crossed they see sense  

Okell

GervisLooper said:

the_lunatic_is_in_my_head said:

The tags isn't really an issue as such, you can remove tags or you can wear clothes, you could even clean the windows with them and still cancel your contract. 

Whether there is cause for a reduction in the refund will depend upon whether the correct information has been provided. The correct information, or lack of, also defines the time period for cancelling.

Until OP advises where they purchased from it's not really possible to state what their position is. 

If it turns out this is an eBay purchase it might be very simple (the eBay Moneyback Guarantee will most likely come into play if OP has a return open on eBay).

If it's somewhere else then as above depends on the information. 

... As to the confusion about not being the right size and descriptions. I bought a Large, they sent a Large. Large was not the right fit for me. I sent it back saying it was not the right fit in initial claim. Then came the confusion with not waterproof, which is another coat from another independent seller...

I suspect English may not be your native language - so perhaps you've not expressed it very well - but what does the above mean?

If you had already sent it back and told the seller that it didn't fit, why did you subsequently need to tell them anything at all, let alone that it wasn't waterproof?

I don't understand why you needed to go back to them and give them a different reason from the first reason.

Was it anything to do with them refusing to accept the initial return because of the missing tags?

Okell

the_lunatic_is_in_my_head said:

Money_Grabber13579 said:

the_lunatic_is_in_my_head said:

Thanks OP

So it appears they extend your right of cancellation to 60 days which makes life easier. I would send the below email to their help@ email address

Dear militarykit

I am writing to advise you that with regards to order xxxx I am exercising my right to cancel the contract as per The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 within the extended 60 day timeframe provided as part of your terms and condition:

https://www.militarykit.com/pages/terms-conditions

As discussed it was an error to advise you the goods had an issue with being waterproof but regardless of any discussion over this matter it simply does not affect my right to cancel.

Please make the reimbursement within 7 days. 

Thank you in advance for your assistance,
Sincerely, 
GervisLooper


Best to check the above for spelling, etc mistakes. 

If the tags are missing there could possibly be cause for them to make a deduction. Really depends upon the specifics, if it's no name brand I can't see the tags matter, if it's branded and customers would expect tags then maybe a small deduction for them to resell as new without tags. 

Hopefully they'll see sense and refund (most) of the payment  

Returning within 60 days is a contractual term though and not one given by statute and so they can place any limitations on that, so long as it doesn’t reduce statutory consumer rights. One such limitation they have added is that the tags must be intact when returning within 60 days.

I’m not sure I would recommend sending the above email as I don’t think your statutory consumer rights have been extended to 60 days. It is possible that they have effectively extended those rights by concession, through giving an extended returns timeline and then replicating all of the benefits of statutory consumer rights. But it is clear they haven’t done this when they state that tags must be intact when returning.

They've extended that timeframe given by statute 

https://www.militarykit.com/pages/terms-conditions

You have the right to cancel this contract within 60 days without giving any reason.

It's their choice to do so and the rest of the terms under the 60 days correctly mirror the regs, including a deduction for "excessive handling" rather than imposing a link between the item condition and the right to cancel.

Either that or they haven't complied with the required info and the timeframe is 1 year and 14 days. 

Hmmm...

I don't think I agree with your first argument that the seller has voluntarily and knowingly extended the 14 day cancellation period in the regulations to 60 days.  I think that after 14 days has expired the remaining 46 days would be construed as the seller's own returns policy, and that they can impose whatever conditions they like to it.

However, if you are saying that there is an alternative argument - that because the seller has not explicitly referred to the 14 day statutory cancellation period as required by paragraph (l) of Schedule 2 of the regulations, then the cancellation period has been extended by a year - then you might be correct.  And if you are correct, the seller can't make any deduction from the refund for diminished value...

The OP needs to go back to the seller again and make this argument clear by reference to the regulations.  They need to be persistent as I suspect the seller might not agree with (or even understand) the argument.

===============================================================

@GervisLooper -  regulation 31 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) extends the statutory cancellation period from 14 days by up to a year if the seller hasn't provided you with the information listed in paragraph (l) of Schedule 2. 

That information includes the statutory cancellation period of 14 days specified in regulation 30.  Because the seller's T&Cs don't mention the 14 day statutory cancellation period, @the_lunatic_is_in_my_head is arguing (1) that the cancellation period has been extended by a year [see regulation 31] and (2) that the seller can't make any deduction from your refund in respect of the missing tags [see regulation 34(11)] 

Whether it's a winning argument I don't know.  But you have nothing to lose by trying it.

the_lunatic_is_in_my_head

Okell said:

I don't think I agree with your first argument that the seller has voluntarily and knowingly extended the 14 day cancellation period in the regulations to 60 days.  I think that after 14 days has expired the remaining 46 days would be construed as the seller's own returns policy, and that they can impose whatever conditions they like to it.

Ignore the return policy page and just looking at the T&Cs (as that's the only bit that seems to matter with regards to cancelling under the regs) it isn't worded to suggest the above. 

The company either offers 60 days cancellation rights, made a mistake by putting 60 days there instead of 14, used a template correctly stating diminished value but doesn't understand what it means or has deliberately set out to mislead by have two policies that are the same but different on one key aspect. 

Giving the benefit of the doubt I went with the first option simply because that's how it reads.

Okell said:, @the_lunatic_is_in_my_head is arguing (1) that the cancellation period has been extended by a year [see regulation 31] and (2) that the seller can't make any deduction from your refund in respect of the missing tags [see regulation 34(11)] 

I was just replying to Money_Grabber to point out it's either 60 days or 379 days but the way the terms are written can't be taken to mean the usual 14. 

I didn't really focus on this for the OP in order to keep it simple. 

If the company came back to OP and said they only had 14 days then yes I would counter that with incorrect info, extended cancellation period and no deduction permitted.  

Pollycat

Okell said:

GervisLooper said:

the_lunatic_is_in_my_head said:

The tags isn't really an issue as such, you can remove tags or you can wear clothes, you could even clean the windows with them and still cancel your contract. 

Whether there is cause for a reduction in the refund will depend upon whether the correct information has been provided. The correct information, or lack of, also defines the time period for cancelling.

Until OP advises where they purchased from it's not really possible to state what their position is. 

If it turns out this is an eBay purchase it might be very simple (the eBay Moneyback Guarantee will most likely come into play if OP has a return open on eBay).

If it's somewhere else then as above depends on the information. 

... As to the confusion about not being the right size and descriptions. I bought a Large, they sent a Large. Large was not the right fit for me. I sent it back saying it was not the right fit in initial claim. Then came the confusion with not waterproof, which is another coat from another independent seller...

I suspect English may not be your native language - so perhaps you've not expressed it very well - but what does the above mean?

If you had already sent it back and told the seller that it didn't fit, why did you subsequently need to tell them anything at all, let alone that it wasn't waterproof?

I don't understand why you needed to go back to them and give them a different reason from the first reason.

Was it anything to do with them refusing to accept the initial return because of the missing tags?

The OP bought jackets from several retailers with similar names.
The jacket he removed the tags from didn't fit. (A)
Another jacket wasn't waterproof (not from the same retailer as the one above). (B)
He initially told the retailer of A that the jacket didn't fit but then confused things and told them it wasn't waterproof.
That's why they re-proofed the jacket A which didn't need it.

Grumpy_chap

I may have missed this amongst the discussion as to whether the period for return is 14 days, or 60 days, or 1 year plus 14 days, but the whole purpose of the CCR right to cancel the order for any or no reason within 14 days is to give the consumer purchasing remotely the opportunity to examine the goods.

It is my understanding that the "examine" is only to the extent that the purchaser would be able to do if assessing the items in a shop. 
That would not extend to removing tags.
I further understand that if the extent of "examine" exceeds the extant that could be done in a shop, then the supplier is entitled to make a deduction for detriment.

The comment that no deduction is permitted seem to ignore that detriment element.

On a £53 jacket, the deduction for no tags could be pretty much 100%

the_lunatic_is_in_my_head

Grumpy_chap said:

The comment that no deduction is permitted seem to ignore that detriment element.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

Reimbursement by trader in the event of withdrawal or cancellation

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

The info has to be correct, if it were to be incorrect then no deduction is permitted regardless. 

To note I haven't implied the company didn't comply and so a deduction isn't permissible but the way the thread has gone implies the wording of their terms (i.e the number of days) is to open to some debate. 

Grumpy_chap said:

On a £53 jacket, the deduction for no tags could be pretty much 100%

In the politest way possible, that's a ridiculous assertion  

It would imply the value of any jacket that wasn't new with tags is pretty much zero and given there are over 2.3 million second hand jackets currently on eBay that would imply they do have a value above zero

There is also 1 million new without tags jackets on eBay as well which implies it's a class between used and new with tags holding greater value than used but perhaps less than new. 

Selling at a distance comes with a responsibility of accepting cancellations regardless of condition and imposing a fair deduction for diminished value. 

The inconvenience of the trader passing along such goods in exchange for some of their money back is in exchange for having access to millions of customers rather than how many may happen to pass by an old fashioned B&M shop.

It's simply without merit to imply an item of clothing with a tag on a bit of string not being attached would render that item of clothing pretty much worthless. 

Okell

Pollycat said:

Okell said:

GervisLooper said:

the_lunatic_is_in_my_head said:

The tags isn't really an issue as such, you can remove tags or you can wear clothes, you could even clean the windows with them and still cancel your contract. 

Whether there is cause for a reduction in the refund will depend upon whether the correct information has been provided. The correct information, or lack of, also defines the time period for cancelling.

Until OP advises where they purchased from it's not really possible to state what their position is. 

If it turns out this is an eBay purchase it might be very simple (the eBay Moneyback Guarantee will most likely come into play if OP has a return open on eBay).

If it's somewhere else then as above depends on the information. 

... As to the confusion about not being the right size and descriptions. I bought a Large, they sent a Large. Large was not the right fit for me. I sent it back saying it was not the right fit in initial claim. Then came the confusion with not waterproof, which is another coat from another independent seller...

I suspect English may not be your native language - so perhaps you've not expressed it very well - but what does the above mean?

If you had already sent it back and told the seller that it didn't fit, why did you subsequently need to tell them anything at all, let alone that it wasn't waterproof?

I don't understand why you needed to go back to them and give them a different reason from the first reason.

Was it anything to do with them refusing to accept the initial return because of the missing tags?

The OP bought jackets from several retailers with similar names.
The jacket he removed the tags from didn't fit. (A)
Another jacket wasn't waterproof (not from the same retailer as the one above). (B)
He initially told the retailer of A that the jacket didn't fit but then confused things and told them it wasn't waterproof.
That's why they re-proofed the jacket A which didn't need it.

Sorry - I may not have made my point very well.

I know that the OP bought a jacket and returned it under the retailer's T&Cs for a refund because "it didn't fit".  No problem.

They subsequently bought 2 more jackets from different retailers.  They returned those 2 jackets because one of them was not waterproof and the other was the wrong size.

What I do not understand is why -  having returned (1) the original jacket to the first retailer because it didn't fit, and (2) the other 2 jackets to the other retailer(s) -  the OP found it necessary to go back to the first retailer again and try to "clarify" the issue by saying that the original jacket had been returned because it wasn't waterproof, when they'd already returned it and told the retailer that it didn't fit?  Why would the OP contact the first dealer for a second time in this situation?

I know the OP says they got confused, but I can't understand how confused they must have been to have gone back to the first retailer - after they had already returned the jacket because it didn't fit - and told them that they'd actually returned the jacket because it wasn't waterproof(!?!?).

Looking at it from the retailer's point of view, if the jacket was returned initially because it didn't fit, but without the original tags, they might well have gone back to the OP saying they won't accept the return because of the missing tags, whereupon the OP might have said "Oh sorry - it's not that it doesn't fit - it's because it isn't waterproof".

I can fully understand why the dealer would then say "OK.  If that's the case we can remedy it by Nikwaxing it and sending it back to you.  Job done!"

I'm afraid the OP might not have just muddied the waters a bit, I'm afraid they might have made the first retailer think they were pushing the limits of the rules...

Okell

@Grumpy_chap -  I understand the point you are making, but what many people forget (or don't realise) is that if a distance seller does not provide to the consumer the information required by the regulations about the consumer's legal rights to cancel a distance contract contained in regulations 27 to 38 , then (1) the cancellation window is extended by up to a year, and (2) the seller is not permitted to make a deduction for any "diminished" value in the cancelled goods.

What @the_lunatic_is_in_my_head is arguing (I think) is that by referring to only a 60 day return period the seller has either (a) voluntarily extended the 14 day statutory cancellation period to 60 days, or (b) has not supplied the correct information about the statutory cancellation period contained in regulations 27 to 38 (eg 14 days to cancel and a further 14 days to return).

If (a) - which I think is a dubious argument anyway - then the OP can cancel within 60 days without the tags, but the seller can make a deduction from the refund for loss of value.  If (b) - which I think is a stronger argument - then the cancellation period is extended by up to a year and the OP is entitled to a full refund.

If I were the OP I think I'd prefer to go with (b)...