Section 75 loophole, savy, or Plain Fraud

the_lunatic_is_in_my_head

If it were a chargeback I would assume OP becomes an involuntary bailee which comes with the usual requirements.

If it were Section 75 and the bank said to keep the goods as they don't want them then I would assume someone is free to do such. I know the bank could go after the seller but from what @born_again has said in the past I don't think they do so for such small sums.

Where ownership of the goods lies if the bank did get the money back from the retailer I'm not sure, I guess it would depend upon whether courts see agreements (such as CC T&C or places like eBay with their Moneyback Guarantee) as holding more weight than what ever common law dictates. 

In terms of doing it again, fraud seems to require false representation or failing to disclose to another person information which he is under a legal duty to disclose whilst seeking a gain or another to make a loss. 

I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

born_again

TBH. If anyone at the bank saw the same issue fir the same product. Customer would be advised to go to retailer.

But expecting a Lego kit to mirror a F1 car & all it's bits is really pushing it too far..
You want a exact copy, then maybe a model kit would be best.

Okell

the_lunatic_is_in_my_head said:

... I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

I'm wondering that as well.

I've never made a s75 claim or a chargeback so I don't know what questions you have to answer or what statements you have to make to support such a claim.  So long as the OP doesn't either (1) make a false representation or (2) fail to disclose something they have a legal duty to disclose, it 's not clear to me where the fraud would be.  (Strange as that might seem).

And the CRA simply refers to goods having to match their description - does it say anything about the consumer not knowing that the goods don't match their description in order to have a right to a remedy?

I'm sure the OP hasn't considered - or isn't aware of - the bailee aspect you mention.  That will complicate matters for them.  [Edit: and the fact the retailer hasn't asked for the current kit to be returned - yet - doesn't mean they won't ask in the future.  Seems a lot of trouble to go to]

This isn't really a question about a s75 loophole.  It's a question about whether the consumer would have rights under the CRA if they bought something that they already knew was "not as Described".  If they do have rights then they must have a s75 claim.  (Ignoring the question of how far a consumer must pursue the retailer before pursuing their credit provider)

the_lunatic_is_in_my_head

born_again said:

TBH. If anyone at the bank saw the same issue fir the same product. Customer would be advised to go to retailer.

But expecting a Lego kit to mirror a F1 car & all it's bits is really pushing it too far..
You want a exact copy, then maybe a model kit would be best.

I'm surprised OP was refunded first time around but the topic in general is interesting.

In a similar vein if S75 cover exists, and you didn't want a repair/replacement, you would would presumably be better off (assume the goods which don't conform hold some kind of value) going to the bank than the retailer as they are less likely to ask for the goods back. 

Whilst that isn't buying the same item twice it is picking a specific avenue which could ultimately benefit you. 

Another note to consider is if the OP purchased a second specifically to sell then they wouldn't be a consumer (odds of proving this aside). 

Okell said:

This isn't really a question about a s75 loophole.  It's a question about whether the consumer would have rights under the CRA if they bought something that they already knew was "not as Described".  If they do have rights then they must have a s75 claim.  (Ignoring the question of how far a consumer must pursue the retailer before pursuing their credit provider)

It's an interesting point, goods are required to match a model for a "contract to supply goods by reference to a model of the goods that is seen or examined by the consumer before entering into the contract.", loose as it may be perhaps the counter argument could be someone buying twice has already seen a model of the goods?

ArbitraryRandom

the_lunatic_is_in_my_head said:

I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

I'd suggest section 2? But as you I've only glanced at it this morning: 

Section 2: Fraud by false representation

10.Section 2 makes it an offence to commit fraud by false representation. Subsection (1)(a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh [1982] Q.B.1053. That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people. 

I think this thread has conclusively answered question one at least  

If the OP were to buy the product with the express intent of seeking a refund and retaining the product to resell/otherwise benefit from, it would seem to meet all the required elements. 

the_lunatic_is_in_my_head

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

I'd suggest section 2? But as you I've only glanced at it this morning: 

Section 2: Fraud by false representation

10.Section 2 makes it an offence to commit fraud by false representation. Subsection (1)(a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh [1982] Q.B.1053. That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people. 

I think this thread has conclusively answered question one at least  

If the OP were to buy the product with the express intent of seeking a refund and retaining the product to resell/otherwise benefit from, it would seem to meet all the required elements. 

I did note that but which part of it is false? 

Forgetting the OP with their Lego rather in general, if you buy goods which do not conform to the contract and then represent they do not conform to the contract is that not true? 

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

I'd suggest section 2? But as you I've only glanced at it this morning: 

Section 2: Fraud by false representation

10.Section 2 makes it an offence to commit fraud by false representation. Subsection (1)(a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh [1982] Q.B.1053. That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people. 

I think this thread has conclusively answered question one at least  

If the OP were to buy the product with the express intent of seeking a refund and retaining the product to resell/otherwise benefit from, it would seem to meet all the required elements. 

I did note that but which part of it is false? 

Forgetting the OP with their Lego rather in general, if you buy goods which do not conform to the contract and then represent they do not conform to the contract is that not true? 

I would say the intent is false - if the intent from the outset is to retain the item and refund then the purchase is not a genuine consumer purchase... 

the_lunatic_is_in_my_head

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

I've only glanced at the Fraud Act, out of mere curiosity it would be interesting to know which specific part of the Act would prohibit this specific action. 

I'd suggest section 2? But as you I've only glanced at it this morning: 

Section 2: Fraud by false representation

10.Section 2 makes it an offence to commit fraud by false representation. Subsection (1)(a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh [1982] Q.B.1053. That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people. 

I think this thread has conclusively answered question one at least  

If the OP were to buy the product with the express intent of seeking a refund and retaining the product to resell/otherwise benefit from, it would seem to meet all the required elements. 

I did note that but which part of it is false? 

Forgetting the OP with their Lego rather in general, if you buy goods which do not conform to the contract and then represent they do not conform to the contract is that not true? 

I would say the intent is false - if the intent from the outset is to retain the item and refund then the purchase is not a genuine consumer purchase... 

Intent is only mentioned with regards to causing a loss or making a gain, it has to be coupled with a false representation.

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

The law doesn't appear to prevent people from using true representations to their advantage regardless of whether or not the intent is perceived as immoral.  

ArbitraryRandom

Yes, but the OP would be representing themselves as a customer making a genuine consumer purchase - when in fact they were not... they would be a customer making a purchase with an intent to benefit by acquiring both the item and their money back.  

A "representation" means any representation as to fact or law, including a representation as to the state of mind of the person making the representation... A representation may be express or implied (Section 2 (4)). It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation may be expressed...A representation can be made by omission...

https://www.cps.gov.uk/legal-guidance/fraud-act-2006

Grumpy_chap

All the discussion as to whether or not the proposed course of action is fraud, or theft, or whatever seems to be missing the point.

This is not something that should get to the position of Chargeback or S75 given there are simpler consumer rights to follow.
I have not read the previous thread as to why the previous issue ended up as Chargeback or S75.  I suspect it should not have.
Trying to give the OP the benefit of the doubt:

• OP purchased an item 2 years back online purchase
• The OP considers the item was not as described on the website.
• That was resolved, for whatever reason, via Chargeback / S75 and not the more readily available consumer rights.
• The OP has been refunded and still retains the original item
• The OP says the website description has not been updated.
• The OP wants the item as per the website description.
• If the description is unchanged, the alternative is that the product has been changed to match the description.
• If the OP now buys a repeat product, the OP can very quickly establish whether the second item received is the same as the first or revised design to match the description.
• If the second items is not a revised design but just the same as the first, then the OP can return under 14-day change-of-mind refund.  No reason is required.
• All resolved very simply without needing the stress of Chargeback / S75.

Whether that benefit of the doubt is appropriate may be another conversation given the OP has suggested at the outset that they see this as a loophole with potential to be exploited.