Should I accept or fight this restocking fee?

Okell

Hoenir said:

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

I don't think A_Geordie is trying to make a practical difference and neither are they suggeting a course of action for the OP to follow.

They're simply asking what the authority is for saying that english law doesn't apply to this contract.  Which is something I've often wondered too...

And they're giving reasons why they think English law might well apply.

Hoenir

Okell said:

Hoenir said:

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

And they're giving reasons why they think English law might well apply.

Social media if full of misinformation. The internet should make people better informed not less. 

A_Geordie

Hoenir said:

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

I simply posed the question why you think English law doesn't apply rather than the prospects of the OP bringing a successful claim or the challenges of starting one. I don't disagree that there are challenges currently with the OP's position. 

Assuming the English law argument applies, the OP would have a 6 year period to bring a claim against the company and in that time the company may become more successful overseas and choose to open a branch in the UK, thereby giving the OP an opportunity to resume that claim if they so wished. Alternatively, armed with the information I've provided, the OP may wish to do a little self-investigation and see if the company has any offices or branches (like a satellite office) that the OP could rely on to pursue a claim in the UK (or Europe) and recover the money that way.

The point I was making is that it would not necessarily be correct that just because the contract was agreed with an overseas company, English law and our consumer rights law doesn't apply. That may assist someone else reading this thread who could be in a similar position to the OP. 

Edit: To add as an afterthought, the OP could pursue a claim, obtain judgment against the company and then wait it out since there is no limitation period for enforcing judgments other than obtaining permission from the court after a period of time of inactivity. 

Okell

Hoenir said:

Okell said:

Hoenir said:

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

And they're giving reasons why they think English law might well apply.

Social media if full of misinformation. The internet should make people better informed not less. 

Hmmm.

I'm pretty certain A_Geordie is a solicitor and I think they might know what they are talking about...

(Not least because they agreed with me on another thread as to whether Argos' click and collect was a distance contract despite Argos' T&Cs saying it wasn't     )

He or she is not advising the OP to sue the Californian seller in an English court.  They are simply questioning whether the bald assertion that the seller is based in California and that therefore Californian law must apply and UK courts have no jurisdiction might be a misinformed view.  Which is something I've often wondered about.

Having looked at the legislation they refer to and having scanned Eternity Sky v Zhang on bailii, I can see that it may not be as clear cut as it's almost always thought to be.

powerful_Rogue

Business Companion states:

A trader does not necessarily have to be based in the UK to be affected by the Consumer
Rights Act. As a general rule, if the trader markets their goods to consumers living in the
UK then the provisions in the Goods Chapter of the Consumer Rights Act could apply to
them. https://www.businesscompanion.info/sites/default/files/CRA-Goods-Guidance-for-Business-Sep-2015.pdf

Section 32 Consumer Rights Act 2015 would be the part they are talking about - https://www.legislation.gov.uk/ukpga/2015/15/section/32

Perhaps if A_Geordie is a solicitor, might be a case for him to take on for you........... But be aware MSE say 'Always remember anyone can post on the MSE forums'

A_Geordie

I didn't actually realise that last post by Hoenir was aimed at me but hey, it is up to Hoenir to choose what to believe or not and free to express their own views. 

To confirm, yes I am solicitor but not a rookie either. No, I cannot take on cases because I am prohibited from doing so as I work 'in-house' for a company not a law firm. So I have one client, which is my employer. 

Speaking generally, the OP doesn't appear to indicate the actual cost of the MacBook and the restocking fee that the company is looking to recuperate but I would take a guess that the amount the OP wants to recover is unlikely to be enough to persuade a lawyer to take on the case because it is unlikely to be worth their time. Perhaps if the OP has legal expenses insurance, they may want to try that route but usually they will only provide representation if the prospects of success is over 50% and the cost of pursuing a claim is not disproportionate to the value claimed. Still, it would need to be reviewed by one of the panel firms who actually have a real knowledge on consumer rights law though in my experience, that doesn't always happen. 

If the OP wanted to pursue this then it may be more efficient/cost effective to DIY but then I'd refer back to my earlier post about throwing good money after bad. OP would need to front the cost of an application to serve the claim outside the UK at a cost of £303 and requires permission of the court, which would be recoverable if successful in obtaining a judgment. Unfortunately, as far as I'm aware, the US is not a signatory to any convention or treaties that recognises foreign judgments so that's where costs are likely to increase unless they can enforce the judgment in the UK or by other means.

Now, if I was in the shoes of the OP (and this should not be taken as formal legal advice) I know what I would probably do and just chalk it up to experience, or at least wait for a better opportunity i.e. if they establish a branch/office in the UK in the next 6 years.

In hindsight, if I couldn't pay by credit card then the next best thing might have been to pay through PayPal or a similar third party and then rely on their buyer protection scheme to get a full refund. Of course, some might suggest the dispute resolution process is not always right or fair and PayPal might accept the company's argument that it is entitled to a restocking fee relying on their terms and conditions given that the people who review these disputes are not likely to be legally trained.

However, in that scenario and a cost of about £65 for a claim value up to £300, I might take a punt at suing PayPal in the UK for breach of contract in connection with the buyer protection scheme and argue English law applies, not Californian law and then relying on the Consumer Rights Act as the basis for a full refund. Depending on the amount being claimed, there could be a higher chance of getting your money back since it might not be commercially viable for PayPal to defend it since the claim would almost always end up on the small claims track, preventing PayPal to recover legal costs even if they were successful in defending a claim.

timmy963

A restocking fee for a customised item makes sense if they had to take the time to actually customise a laptop to specification.

I would argue that selecting drop boxes on a website in order for the seller to know which pre-built, boxed and ready machine to ship doesn't constitute 'customised'.

If it's a modern Macbook, everything is soldered on to the laptop and cannot be changed or upgraded. This makes a restocking fee for a customised Macbook completely ludicrous.

PHK

timmy963 said:

A restocking fee for a customised item makes sense if they had to take the time to actually customise a laptop to specification.

I would argue that selecting drop boxes on a website in order for the seller to know which pre-built, boxed and ready machine to ship doesn't constitute 'customised'.

If it's a modern Macbook, everything is soldered on to the laptop and cannot be changed or upgraded. This makes a restocking fee for a customised Macbook completely ludicrous.

MacBooks can be customised, just not officially. There are plenty of companies that do this. 

I think the point about whether the UK can make claim against a US company is largely irrelevant to this case. 

How would they enforce judgement ? Other than wait until an opportunity arises which may be never. 

Personally, and with no offence intended, the OP sounds like they don’t understand importing and this has contributed to a breakdown in communication and lengthy delays. 

Bobla

Thank you everyone for your replies and looking into things so diligently. To clarify a few things, the MacBook I ordered was an M3 Pro, so a very current model. I asked formally for a refund on the 25th July. Things have been slow sailing since then and they have told me they have gotten the restocking fee reduced from 15% to 5%. Opinion about whether or not I should actually be charged a restocking fee for an item never received is varied from those asked, with even an Apple senior advisor saying a restocking fee would not be applicable for an unauthorised reseller of their items. They basically said Stock4Less were lying. Unfortunately I couldn't get that in writing, it was a phone call. Don't know if they would be willing to provide it in writing anyway. I did mention this to the company, who were still adamant about the restocking fee. They were also casting doubt about whoever I spoke to, as if it wasn't someone from Apple. Which for me is both childish on their part, and also a red flag. So I will still be looking into this as it all feels off and leaves a bad taste in my mouth. 

They've been iffy about times they would receive the money on their end, and when I would receive the refund on my end as well. They gave a date about when they would get the money on their side, after I insisted repeatedly for a date, then that date just changed and they allotted themselves more time for no apparent reason. Then they said I would receive my refund by the Friday 31st August. Well, 2-3 business days since Wednesday. And I am counting Wednesday as I received this message in the early morning hours on their side. Still nothing. I am a bit tired of being polite at this point. Especially with everything else mentioned above and my doubts about them as a whole.

Will update next week with more news, as I have already sent a message inquiring yet again about this refund.

powerful_Rogue

Bobla said:

Thank you everyone for your replies and looking into things so diligently. To clarify a few things, the MacBook I ordered was an M3 Pro, so a very current model. I asked formally for a refund on the 25th July. Things have been slow sailing since then and they have told me they have gotten the restocking fee reduced from 15% to 5%. Opinion about whether or not I should actually be charged a restocking fee for an item never received is varied from those asked, with even an Apple senior advisor saying a restocking fee would not be applicable for an unauthorised reseller of their items. They basically said Stock4Less were lying. Unfortunately I couldn't get that in writing, it was a phone call. Don't know if they would be willing to provide it in writing anyway. I did mention this to the company, who were still adamant about the restocking fee. They were also casting doubt about whoever I spoke to, as if it wasn't someone from Apple. Which for me is both childish on their part, and also a red flag. So I will still be looking into this as it all feels off and leaves a bad taste in my mouth. 

They've been iffy about times they would receive the money on their end, and when I would receive the refund on my end as well. They gave a date about when they would get the money on their side, after I insisted repeatedly for a date, then that date just changed and they allotted themselves more time for no apparent reason. Then they said I would receive my refund by the Friday 31st August. Well, 2-3 business days since Wednesday. And I am counting Wednesday as I received this message in the early morning hours on their side. Still nothing. I am a bit tired of being polite at this point. Especially with everything else mentioned above and my doubts about them as a whole.

Will update next week with more news, as I have already sent a message inquiring yet again about this refund.

Restocking fees are common and legal in the US. Apple have no say whether an unauthorised reseller can apply them or not.