Argos, click and collect. Distance sale or not?

the_lunatic_is_in_my_head

Sorry if it’s an obvious question OP but have you tried resetting the phone to factory settings? 

jambomakaveli

Yes, I’ve done that twice. The same thing was happening. 

PHK

the_lunatic_is_in_my_head said:

Kim_13 said:

jambomakaveli said:

eskbanker said:

jambomakaveli said:

Don’t really know where to go with it now. 

Just to be clear, are you hoping that it'll be classified as a distance sale specifically because you want to cancel the contract (for a change of mind), as opposed to the item being faulty (which would open up other potential remedies)?

I took the phone back to the store the very next day, it genuinely was switching itself off and on, and I asked for a refund as I thought it to be faulty. They flat out refused and said I’d have to drive 40 miles to an Apple Store for a genius report, or I could have it sent away for them to diagnose a fault, as they couldn’t see a fault from testing it in store. 

There was no way I was going to agree to either of those, so I then pursued a refund under the distance selling regulations, which as of today has been formally denied by email from the customer care team, who say it’s not a distance sale. 

They would be correct in declining a return as the phone had been turned on. The regulations are based on you being able to see the product in store, but not turn it on/use it, so that is what you are allowed to do while retaining the right to return when you complete the purchase online. As you’ve done something that would not be allowed in store, there is no right to return (but you can look into the right to reject for faulty goods.) If they don’t want returns of opened, unused products, then they need to insist that items can only be reserved online and paid for in store (which would make it an on premises sale and not a distance one.) It is the point of money changing hands that is critical, as there can be no contract formed without payment, so the contract is formed at that point. They cannot override a customer’s statutory rights with their terms.

@Kim_13 this isn't correct  

Where the consumer's handling goes beyond what is necessary to establish the nature and characteristics of the goods, typically what's permitted in store, the consumer still has the right of cancellation however the trader may make a deduction for any diminished value suffered as a result. That right of deduction only applies where the trader complies with providing the required information as per paragraph (l) of Schedule 2 of the CCRs (which is the rights on cancellation). 

Simply put using a phone doesn't void the right of cancellation, only the limits of application 

https://www.legislation.gov.uk/uksi/2013/3134/regulation/28

void that right.

As well the situations the entire regulations don't apply to:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/6

Regarding payment, many websites take payment upon the customer ordering but stipulate the contract is formed upon dispatch by acceptance occurring at that point. 

A contract requires, offer, consideration, acceptance. 

The consideration part is the benefit each party will receive under the contract, AFAIK that just has to be the agreement of money, or whatever, rather than the actual exchange @Okell might be able to clarify better, but either way it requires that final point of acceptance for a contract to be formed. 

I do believe without terms stating otherwise the exchange of money could be taken as acceptance but it seems terms can delay the point of acceptance until a certain action (such as dispatch) has occurred. 

What we don't know is whether terms can delay acceptance until a different action (collection of the goods) is something that can be stipulated, and if it is Argos certainly haven't made their terms clear for non-FastTrack C&C orders.

It's not quite that simple,  potentially. But if you personalise the item post sale then its likely the deduction will be substantial. The problem is that the law was made thinking of something that can be physically altered, rather than electronically. 

For example, someone who buys a physical object and paints it, is unlikely to get much if any refund. 

In the case of any electronic device that's been added to the OPs account then  the memory is encrypted and no-one else can wipe the device. Would this count as permanently altered?

I can quite see why a retailer would want to have a device like an iPhone inspected (all are tested before packing so it's highly unusual for there to be a fault) to make sure that it's not been damaged, misused and that the OP has removed the device from their iCloud.

With hindsight, the OP should have stuck with rejecting the item as faulty. Because now the situation has been complicated. 

the_lunatic_is_in_my_head

PHK said:

In the case of any electronic device that's been added to the OPs account then  the memory is encrypted and no-one else can wipe the device. Would this count as permanently altered?

As there is a market for second hand phones the deduction should probably reflect any costs the trader has in restoring to a satisfactory condition for resale plus the difference between what the sold price was and what the mitigated resale price is in the condition returned. 

A black 128gb iPhone 15 is £699.99 on Argos, MusicMagpie have the same phone in pristine condition for the same price (they seem to be £799.99 from Apple directly).

Now I understand some may say, well what are Argos supposed to do with not new goods but that's their problem really, if they can run an inventory with 10s of thousands of products, they can run a clearance section or sell through another avenue if they don't wish to dilute their brand by sticking the not new on the same website as the new. 

If you buy from Apple they will engrave your phone for free, this isn't because they are very kind, this is because if you have it engraved it's been personalised and the right to cancel no longer exists, very smart and a perfectly acceptable thing to do. 

The EU guidance probably puts it best with a handy example along the lines of electronic changes to the goods  

The diminished value of the goods can consist, in particular, of the cleaning and repairs cost and, if the goods can no longer be sold as new, the objectively justified loss of income for the trader when disposing of the returned good as second-hand good.

Whether the consumer's testing of the goods went beyond what was necessary to establish their nature, characteristics and functioning will have to be assessed on a case-by-case basis in the event of a dispute. The comparison with what the consumer can normally do in a brickand-mortar shop serves as a good point of reference,  for example:

Before purchasing audio/video and recording equipment, the consumer would normally be able to test the image or sound quality;

Trying on a garment in a shop would not involve the removal of the manufacturer's tags;

The consumer would not normally be able to practically test household appliances, such as kitchen appliances, the actual use of which unavoidably leaves traces;

The consumer would not be able configure software on a computer; hence reasonable costs for any resetting of such equipment would also constitute diminished value

jambomakaveli said:

Yes, I’ve done that twice. The same thing was happening. 

Whilst I don't think you should have to have you tried posting on the Apple forums? I would assume there are people there (maybe Apple staff as well?) who can assist with the more technical aspects.

If you was seeking a repair or replacement it is taken there is a problem and down to them to prove otherwise, they must sort this within a reasonable time and a month or so is probably reasonable. 

It's a bad situation and Argos are not the best for customer service really. 

Kim_13

Argos do sell refurb phones, e.g. https://www.argos.co.uk/product/3361296?clickSR=slp:term:iphones%20refurb:7:312:1 . Most of the time so long after the original release/priced such that I can’t imagine there being much demand, but that is their problem as you say. Other retailers make refurbished products available more quickly, and if they don’t want to accept returns because that would be the basis it would have to be sold on, then as I said before they need to only sell these products in store. When it is bought in store, there is no legal right of return so a policy of you can’t return xyz would stand.

I agree that the situation has been complicated by the fault, and OP should have stuck with that route. When the phone isn’t any cheaper than buying from Apple, always do that. My only experience with a faulty product was with a giffgaff refurbished phone. It arrived just as I was going away, so I took it with me and had lost the right to reject by the time I returned. I sent it in for repair three times, the first they said they couldn’t replicate the fault, the second they said it was a software issue that they had fixed and the third (when I started an agent request as well as a repair one, because they seemed to have a standard way of testing that wouldn’t show the fault which was that it would randomly reboot itself but only when the screen was off - I could go asleep and leave a YouTube video running and it would still be on when I woke up - but make a phone call and while there was no problem with mic/sound or any of the usual call faults, you only needed to stay on the line for a minute or so to see it.) There was nothing for my fault on their repair options which likely contributed to the saga, but in fairness to them they replaced the phone the third time it was sent in and refunded the postage for the two excess times it had been sent to them.

Be very clear as to what the fault is, the steps they need to take to reproduce it and how long it’ll take to show. 

Okell

the_lunatic_is_in_my_head said:

jambomakaveli said:

Sooooo, in layman’s terms…. Am I done for? 😂

I really don't know OP.

I don't think you are going to get far with Argos CS, sorry meant to give a link earlier:

https://www.citizensadvice.org.uk/

I would see what they say, their advice is not in-depth and like ours is free so not necessarily always correct but worth a 5 min chat.

Beyond that you are better off contacting their head office to see what their actual position is regarding distance sales.  

In the third reply to this thread @Kim_13 linked to a similar thread from February.  The last post in that thread was from the OP and she told us that CAB had confirmed to her that click and collect was a distance contract.  She didn't specifically mention Argos in her final post, but as that was who the thread was about I assume the CAB response was based on the Argos T&Cs.

Incidentally, don't know if you remember, but that OP was successful as Argos agreed to refund her as a "gesture of goodwill" after she sent them a template letter you had drafted(!).

Regarding the general question of Argos' T&Cs in respect of "click and collect sales" only being formed or concluded on collection, I'd suggest it's bolleaux.

There's three elements to a contract: offer, acceptance and consideration*.  Once you have those three things you have a contract - nothing else is required or is necessary.

An offer in a contrcat like this must be made by the consumer.  Similarly, the only party that can accept that offer must be the trader.  I would suggetst that in cases like this, Argos are accepting the offer when they make the goods available for collection.  Once that is done, the contract is concluded for the purposes of the cancellation regulations*.  Collection by the consumer is after the fact of the contract being concluded.  Or at least that's certainly what I'd be arguing in a court claim and I think a small claims court would be sympathetic to a consumer arguing that point against a large retailer like argos**.

The only possible difficulty I could see with that approach would be if argos argued that their acceptance was only conditional on the consumer collecting the goods, but I think that would have to be expressly stated in their T&Cs.  And I don't think a court would look favourably on that argument in a consumer protection case anyway**.  I'd say that the wording of the regs make it clear that click and collect contracts are distance contracts.

The fact that the consumer could have inspected the goods on collection is irrelevant - there's no mention of that in the regs.

I'm not going to comment on this case as to whether the OP should just have tried to reject the 'phone as faulty as opposed to trying to cancel it


* I don't think consideration is relevant in this case.

**  That's my view anyway.  A judge might view it differently

PHK

the_lunatic_is_in_my_head said:

PHK said:

In the case of any electronic device that's been added to the OPs account then  the memory is encrypted and no-one else can wipe the device. Would this count as permanently altered?

As there is a market for second hand phones the deduction should probably reflect any costs the trader has in restoring to a satisfactory condition for resale plus the difference between what the sold price was and what the mitigated resale price is in the condition returned. 

A black 128gb iPhone 15 is £699.99 on Argos, MusicMagpie have the same phone in pristine condition for the same price (they seem to be £799.99 from Apple directly).

Now I understand some may say, well what are Argos supposed to do with not new goods but that's their problem really, if they can run an inventory with 10s of thousands of products, they can run a clearance section or sell through another avenue if they don't wish to dilute their brand by sticking the not new on the same website as the new. 

If you buy from Apple they will engrave your phone for free, this isn't because they are very kind, this is because if you have it engraved it's been personalised and the right to cancel no longer exists, very smart and a perfectly acceptable thing to do. 

The EU guidance probably puts it best with a handy example along the lines of electronic changes to the goods  

The diminished value of the goods can consist, in particular, of the cleaning and repairs cost and, if the goods can no longer be sold as new, the objectively justified loss of income for the trader when disposing of the returned good as second-hand good.

Whether the consumer's testing of the goods went beyond what was necessary to establish their nature, characteristics and functioning will have to be assessed on a case-by-case basis in the event of a dispute. The comparison with what the consumer can normally do in a brickand-mortar shop serves as a good point of reference,  for example:

Before purchasing audio/video and recording equipment, the consumer would normally be able to test the image or sound quality;

Trying on a garment in a shop would not involve the removal of the manufacturer's tags;

The consumer would not normally be able to practically test household appliances, such as kitchen appliances, the actual use of which unavoidably leaves traces;

The consumer would not be able configure software on a computer; hence reasonable costs for any resetting of such equipment would also constitute diminished value

jambomakaveli said:

Yes, I’ve done that twice. The same thing was happening. 

Whilst I don't think you should have to have you tried posting on the Apple forums? I would assume there are people there (maybe Apple staff as well?) who can assist with the more technical aspects.

If you was seeking a repair or replacement it is taken there is a problem and down to them to prove otherwise, they must sort this within a reasonable time and a month or so is probably reasonable. 

It's a bad situation and Argos are not the best for customer service really. 

With regard to restoring to a satisfactory condition.   Only the person who added the iPhone to their account can undo that action.  Its not possible for an engineer to do so. So the cost would essentially be the cost at trade of a new phone. The reason for mentioning this is that its reasonable for a retailer to be able to confirm the condition of the item when a doubt exists. 

If the OP doesn't think that the actions are reasonable or in line with the law then they have the right to take action.  

the_lunatic_is_in_my_head

PHK said:

With regard to restoring to a satisfactory condition.   Only the person who added the iPhone to their account can undo that action.  Its not possible for an engineer to do so. So the cost would essentially be the cost at trade of a new phone. The reason for mentioning this is that its reasonable for a retailer to be able to confirm the condition of the item when a doubt exists. 

If the OP doesn't think that the actions are reasonable or in line with the law then they have the right to take action.  

If people can sell their iPhones to MM for resale then Argos can also resell returned iPhones, I'm not a phone person so have no idea but if the user would be required to do something for a trade in with MM I'd assume they are informed to do so and equally if Argos wish to mitigate their loss they'd also inform of such

Okell said:

In the third reply to this thread @Kim_13 linked to a similar thread from February.  The last post in that thread was from the OP and she told us that CAB had confirmed to her that click and collect was a distance contract.  She didn't specifically mention Argos in her final post, but as that was who the thread was about I assume the CAB response was based on the Argos T&Cs.

Incidentally, don't know if you remember, but that OP was successful as Argos agreed to refund her as a "gesture of goodwill" after she sent them a template letter you had drafted(!).

Regarding the general question of Argos' T&Cs in respect of "click and collect sales" only being formed or concluded on collection, I'd suggest it's bolleaux.

There's three elements to a contract: offer, acceptance and consideration*.  Once you have those three things you have a contract - nothing else is required or is necessary.

An offer in a contrcat like this must be made by the consumer.  Similarly, the only party that can accept that offer must be the trader.  I would suggetst that in cases like this, Argos are accepting the offer when they make the goods available for collection.  Once that is done, the contract is concluded for the purposes of the cancellation regulations*.  Collection by the consumer is after the fact of the contract being concluded.  Or at least that's certainly what I'd be arguing in a court claim and I think a small claims court would be sympathetic to a consumer arguing that point against a large retailer like argos**.

The only possible difficulty I could see with that approach would be if argos argued that their acceptance was only conditional on the consumer collecting the goods, but I think that would have to be expressly stated in their T&Cs.  And I don't think a court would look favourably on that argument in a consumer protection case anyway**.  I'd say that the wording of the regs make it clear that click and collect contracts are distance contracts.

The fact that the consumer could have inspected the goods on collection is irrelevant - there's no mention of that in the regs.

I'm not going to comment on this case as to whether the OP should just have tried to reject the 'phone as faulty as opposed to trying to cancel it


* I don't think consideration is relevant in this case.

**  That's my view anyway.  A judge might view it differently

I do remember just as it was marked as a gesture of goodwill it didn't really help clarify what Argos think their position actually is. 

Long thread to re-read but IIRC you said acceptance should be signified by an action on the trader's part rather than on the consumer's which makes sense, the only doubt here is Argos isn't the only place say this, well what Argos say is a mess but the other place spelled it out clearly, it was a known retailer claiming acceptance upon collection.

Guess it needs to be tested really which means we're probably unlikely to find out for a long time. 

Kim_13

I suspect that Argos’s “gesture of goodwill” was them realising they were in the wrong but not wanting to admit such. Most will be fobbed off when told by their CS that they don’t have a right of return, so it does reduce their losses. They only pay the price for having terms that attempt to remove a customer’s statutory rights when someone successfully takes them to court for it.

Okell

Kim_13 said:

I suspect that Argos’s “gesture of goodwill” was them realising they were in the wrong but not wanting to admit such. Most will be fobbed off when told by their CS that they don’t have a right of return, so it does reduce their losses. They only pay the price for having terms that attempt to remove a customer’s statutory rights when someone successfully takes them to court for it.

The cynic in me tends to agree with you...