Excessive handling charge for returning unwanted goods

TELLIT01

born_again said:

Which retailer?
Could be that they are a trade based seller, where that is the norm.

MSE idea, just get the holes made bigger to fit 👍

The OP didn't say the holes were too small for the fittings, just that the lamps didn't fit the holes.

the_lunatic_is_in_my_head

Bradden said:

the_lunatic_is_in_my_head said:

Undervalued said:

However, I am not sure what happens if the seller makes clear they are "trade only" (like Howdens for example) but accidentally accepts an order from a consumer?

A consumer is defined as means an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.

A company claiming to be this that or the other doesn't change the wording of the CRA  

Howdens and other trade suppliers comply with the CRA. You cannot place an order with Howdens without a trade account and they only offer accounts to business customers. 

That's pretty much it Any company not willing to sell to consumers needs a sufficient barrier in place to prevent consumer purchases.  

A_Geordie

@the_lunatic_is_in_my_head I think you are right when you say there needs to be a sufficient barrier but I don't think the barrier needs to be tied to prevent the consumer from making a purchase.

Whether someone is considered to be a consumer will be based on an objective standard i.e. the ordinary reasonable person taking into account all of the relevant facts and circumstances at the time the contract was concluded.

I think @Undervalued also make a valid point. There is no prescribed method that a trade-only store should implement to avoid entering into a consumer contract with an individual, particularly with online shops who are quite often small businesses with limited means or resources but equally apply to larger companies and multinationals. 

The trader could make a simple and attractive argument by saying, for example, that their online store places in prominent areas such as their homepage, checkout page or elsewhere that they are a trade-only business and do not deal with consumers. Therefore, with the OP purchasing goods from the online store, is representing themselves as someone other than a consumer. The OP cannot then argue that retrospectively they are now a consumer when it was unambiguously clear of their trading status and the transactional intentions of the trader was to contract with businesses and not consumers.

If the above were true, I think the OP would have reduced chances of success in a court hearing trying to convince a judge that they didn't know the business did not deal with consumers or even if they did, the CRA automatically implies a consumer contract. On the flip side, if there is no statement to that effect or the trader has buried it in the small print or 4-5 sub-levels such that it would be difficult to find without being told where to look, then I think the OP would have a good chance of success of claiming it was a consumer contract.

I'm 70%-80% certain there is already a few EU authorities on this point (which the CRA 2015 derives from) but I just can't remember the names.

Okell

MattMattMattUK said:

Okell said:

Undervalued said:

Okell said:

tacpot12 said:

30% restocking fee seems steep, but there may be a reason for it within their business model. If you don't agree to it, they don't have take the items back if they aren't faulty, so I think you are going to have to accept the charge and the lesson that you need to check dimensions carefully. (I won't buy from online retailers that are too lazy to put the critical dimensions on their website.)

Unless he's outside the 14 day window, why wouldn't the OP be able simply to cancel the distance contract under the CCRs?  If the contract is being cancelled, why wouldn't the seller have to take them back if they aren't faulty?

So far as I'm aware, restocking fees - whether 30% or 5% - are not applicable to consumer contracts.

The seller might be able to reduce any refund to reflect a loss of value caused by "excessive handling", but they can't just charge a flat rate of 30% across the board for all returns or cancellations.

Assuming this was a consumer and not trade sale then you are legally correct. That said, morally I have some sympathy with the seller, although I agree 30% is steep.

However, I am not sure what happens if the seller makes clear they are "trade only" (like Howdens for example) but accidentally accepts an order from a consumer?

I understand. 

I think the lunatic has got it right that what a consumer is is defined in the Consumer Rights Act and in The Consumer Contracts (Information etc etc) Regulations.

Howdens and similar traders can choose not to sell to consumers, but if they do sell to someone who is a consumer, I don't think they can turn round and say "This wasn't a consumer contract because we only sell to the trade".

The definition of a consumer is set within the legislation.  I don't think the mere fact of Howdens etc selling something to someone necessarily makes that person something other than a consumer.

I'm also assuming that because the OP talks about "my ceiling" that this is a consumer DIY job.

But I could be wrong about all the above.

Howdens require someone to confirm that they are a trade purchaser to be able to buy from them, it is a requirement to be able to open a trade account and they only allow people with a trade account to buy from them, I think it would be very difficult to argue that one was a consumer under those circumstances. 

As I said "I don't think the mere fact of Howdens etc selling something to someone necessarily makes that person something other than a consumer".  (And I'm simply using Howdens as a general illustrative example of sellers who cliam to sell only to the trade because somebody else mentioned them earlier - I'm not giving them or how they operate as a specific example here.)

But if the seller goes further than just saying that they only sell to the trade and - as the lunatic says - puts up some effective barrier to ensure that they only contract with trade purchasers, then that might be ok.

However, as regards the CRA I'm not certain it would help the seller even if the purchaser said they were a trader* as generally a seller cannot avoid or restrict liability under the CRA?  Not certain if there would be any effect under the CCRs.

But unless the OP comes back and says he's a tradesman I don't believe it's an issue here anyway


*Of course a consumer who falsely holds themself out to be a tradesman in order to get a trade discount and to gain consumer protection not available to tradesmen might end up with more serious problems than trying to get a £300 refund...

the_lunatic_is_in_my_head

A_Geordie said:

The trader could make a simple and attractive argument by saying, for example, that their online store places in prominent areas such as their homepage, checkout page or elsewhere that they are a trade-only business and do not deal with consumers. Therefore, with the OP purchasing goods from the online store, is representing themselves as someone other than a consumer. The OP cannot then argue that retrospectively they are now a consumer when it was unambiguously clear of their trading status and the transactional intentions of the trader was to contract with businesses and not consumers.

I'm always happy to be corrected and nothing better than case law to do that  

However, if I walk into a "trade only" DIY store and say I'm not trade but would like to buy that sander and the store owner says yes, 2 months later it fails and I go back armed with the CRA to be told "trade only", the avenue for abuse here is just to wide in my opinion.

My argument to that situation would be liability that can't be excluded under the CRA, whether signs in store, tick box on a website or terms on an invoice, painstaking clear or completely hidden, either way it breaches that requirement. If however the store places a barrier to me as a consumer then they demonstrate that they carried out due diligence to ensure I wasn't a consumer and the fault lies with myself*. 

To what level that barrier should be could be debated, as I've said on here before, when dealing with global brands via distributors they required 2 trade references and a bank reference, LTD wasn't required, don't think VAT number was but basically to get a price that was worth while the spend alone would be more than the threshold so it wouldn't be long until you had a VAT number any way and no consumer is going to be spending that much money on a set type of goods.

You could place an order with a single unit on it but if you become a pain in the behind arguing over one order being a consumer purchase then they could of course wish you well and refuse to serve you any longer, who is going to cut off their supply required to earn a living over the odd purchase that might have been a consumer one? No one obviously. 

The issue arises with places that call themselves "trade only" but really they are happy to take anyone's money, if it were that easy everywhere would be "trade only". Basically places that really want to be trade only simply don't have consumers buying from them.

Okell said:

*Of course a consumer who falsely holds themself out to be a tradesman in order to get a trade discount and to gain consumer protection not available to tradesmen

*This is one of those things where again better understanding of how small claims work would be useful, even if I pass a (low) barrier and make a consumer purchase, what view would a court take? 

Okell

the_lunatic_is_in_my_head said:

A_Geordie said:

The trader could make a simple and attractive argument by saying, for example, that their online store places in prominent areas such as their homepage, checkout page or elsewhere that they are a trade-only business and do not deal with consumers. Therefore, with the OP purchasing goods from the online store, is representing themselves as someone other than a consumer. The OP cannot then argue that retrospectively they are now a consumer when it was unambiguously clear of their trading status and the transactional intentions of the trader was to contract with businesses and not consumers.

...The issue arises with places that call themselves "trade only" but really they are happy to take anyone's money, if it were that easy everywhere would be "trade only"...

Yes - that's the problem that I see too.  It's stores that purport to sell only to trade customers in order to try to evade their obligations and responsibilities under consumer protection legislation, but they're quite happy to sell to anyone who's money is good enough.  ie anyone 

the_lunatic_is_in_my_head said:

Okell said:

*Of course a consumer who falsely holds themself out to be a tradesman in order to get a trade discount and to gain consumer protection not available to tradesmen

... *This is one of those things where again better understanding of how small claims work would be useful, even if I pass a (low) barrier and make a consumer purchase, what view would a court take? 

If a trader asks a potential customer whether they are a consumer or a tradesman, I suppose it depends how economical with the truth the purchaser is when persuading the trader to sell to them as a tradesman.  I suppose the higher the barrier and the more economical the purchaser is, the more likely that they might potentially be committing some kind of criminal offence.  I'm thinking of fraud as I suppose at some point it could argued that they are trying to gain a financial advantage by intentionally deceiving the seller as to their status

Whether a court would decide in those circumstances that it could not uphold a claim that was otherwise a valid consumer claim, I don't know.  I'd have thought it was a separate criminal matter as opposed to a civil matter and so was irrelevant to the civil claim.  But I suppose there may be some fundamental legal doctrine that says you can't benefit in a civil case from a criminal act you may have committed.

I don't know but @A_Geordie may have a view on that as I believe they are a solicitor.

A_Geordie

the_lunatic_is_in_my_head said:

However, if I walk into a "trade only" DIY store and say I'm not trade but would like to buy that sander and the store owner says yes, 2 months later it fails and I go back armed with the CRA to be told "trade only", the avenue for abuse here is just to wide in my opinion.

My argument to that situation would be liability that can't be excluded under the CRA, whether signs in store, tick box on a website or terms on an invoice, painstaking clear or completely hidden, either way it breaches that requirement. If however the store places a barrier to me as a consumer then they demonstrate that they carried out due diligence to ensure I wasn't a consumer and the fault lies with myself*. 

I think your statement above is now introducing a material variable, which is if the individual says "I'm not a tradesperson". In that scenario, I would wholeheartedly agree with your views and say that the trader cannot escape the jaws of the CRA.

Unless I missed it, the OP hasn't indicated in their post that they informed the trader they were not a tradesperson so I think until the OP clarifies the point, we can only work off what the OP has given us which is that they purchased from a trades-only store.

Here is a case I found, whilst not a direct reference to the Consumer Rights Directive, is a judgment on the Brussels Regulations. For contexrt, those regulations provide consumer protection that allows consumers who are subject to cross-border contracts to sue a trader in their own country and the governing law or jurisdiction of the contract is different to the country they live in. The regulations have a similar definition of consumer under the CRA i.e. acting outside their trade or profession. 

Link: Case C-464/01 Johann Gruber v Bay Wa AG concerned a services for replacement roof tiles where the building was used for both residence and commercial purposes. The issue was whether Gruber was acting as a consumer or not for the purposes of this contract. 

Relevant paragraphs to our debate (emphasised some key text): 

47

... it is therefore for the court seised to decide whether the contract was intended, to a non-negligible extent, to meet the needs of the trade or profession of the person concerned or whether, on the contrary, the business use was merely negligible. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded.

48

Finally, as regards the national court’s question as to whether it is necessary for the party to the contract other than the supposed consumer to have been aware of the purpose for which the contract was concluded and the circumstances in which it was concluded, it must be noted that, in order to facilitate as much as possible both the taking and the evaluation of the evidence, it is necessary for the court seised to base its decision mainly on the evidence which appears, de facto, in the file

49

If that evidence is sufficient to enable the court to conclude that the contract served to a non-negligible extent the business needs of the person concerned, Articles 13 to 15 of the Brussels Convention cannot be applied in any event because of the status of those provisions as exceptions within the scheme introduced by the Convention. There is therefore no need to determine whether the other party to the contract could have been aware of the business purpose

50

If, on the other hand, the objective evidence in the file is not sufficient to demonstrate that the supply in respect to which a contract with a dual purpose was concluded had a non-negligible business purpose, that contract should, in principle, be regarded as having been concluded by a consumer within the meaning of Articles 13 to 15, in order not to deprive those provisions of their effectiveness

51

However, having regard to the fact that the protective scheme put in place by Articles 13 to 15 of the Brussels Convention represents a derogation, the court seised must in that case also determine whether the other party to the contract could reasonably have been unaware of the private purpose of the supply because the supposed consumer had in fact, by his own conduct with respect to the other party, given the latter the impression that he was acting for business purposes

52

That would be the case, for example, where an individual orders, without giving further information, items which could in fact be used for his business, or uses business stationery to do so, or has goods delivered to his business address, or mentions the possibility of recovering value added tax.

53

In such a case, the special rules of jurisdiction for matters relating to consumer contracts enshrined in Articles 13 to 15 of the Brussels Convention are not applicable even if the contract does not as such serve a non-negligible business purpose, and the individual must be regarded, in view of the impression he has given to the other party acting in good faith, as having renounced the protection afforded by those provisions.

Edit: In case anyone asks, this was case law pre-brexit and therefore still binding and relevant unless overruled by the Court of Appeal / Supreme Court.

To summarise, paragraph 51-52 in my opinion is the key question. If the OP purchased goods from a website operating as a trade-only store and without giving further information as to their purpose, the OP could be viewed as having waived their rights under the CRA since the primary purpose of the trader is to sell goods to tradespeople only and referring to my previous post, it would not be unreasonable for the trader to make a reasonable assumption that the purchaser is a tradesperson agreeing to the business terms of sale. 

If the trader asks whether the purchaser is a tradesperson and the purchaser says no, but the trader continues to contract with the purchaser, then I think the CRA would apply and the trader is stuck by their decision to sell. 

A_Geordie

Okell said:

If a trader asks a potential customer whether they are a consumer or a tradesman, I suppose it depends how economical with the truth the purchaser is when persuading the trader to sell to them as a tradesman.  I suppose the higher the barrier and the more economical the purchaser is, the more likely that they might potentially be committing some kind of criminal offence.  I'm thinking of fraud as I suppose at some point it could argued that they are trying to gain a financial advantage by intentionally deceiving the seller as to their status

Whether a court would decide in those circumstances that it could not uphold a claim that was otherwise a valid consumer claim, I don't know.  I'd have thought it was a separate criminal matter as opposed to a civil matter and so was irrelevant to the civil claim.  But I suppose there may be some fundamental legal doctrine that says you can't benefit in a civil case from a criminal act you may have committed.

Well there may be multiple criminal offences, fraud by false representation as one example but they would need to prove the consumer had gained some advantage through that false representation - what would that be, not paying VAT, the trader losing out on revenue since the prices are cheaper for trades than ordinary consumers? 

A civil court would not usually consider allegations of criminal offences but there is a civil equivalent to fraud which is the tort of deceit. You also have other civil claims such as misrepresentation under the Misrepresentation Act 1967 (fraudulent, negligent and innocent misrepresentation) each of them can have distinctive remedies. There is also negligent misstatement which is a separate legal cause of action outside of the above. Thresholds in all of them vary but as you might appreciate, the more serious the allegation, the higher the threshold there is to prove your case.

Negligent misrepresentation and misstatement are easier to prove than other forms like deceit and fraudulent misrepresentation since the burden rests with the person making the statement to prove it was true or that they were not reckless in making the statement. 

As for benefiting from an illegal act, that's a whole more complicated but falls under the doctrine of illegality and not something I would want to explain! 

Okell

A_Geordie said:

the_lunatic_is_in_my_head said:

However, if I walk into a "trade only" DIY store and say I'm not trade but would like to buy that sander and the store owner says yes, 2 months later it fails and I go back armed with the CRA to be told "trade only", the avenue for abuse here is just to wide in my opinion.

My argument to that situation would be liability that can't be excluded under the CRA, whether signs in store, tick box on a website or terms on an invoice, painstaking clear or completely hidden, either way it breaches that requirement. If however the store places a barrier to me as a consumer then they demonstrate that they carried out due diligence to ensure I wasn't a consumer and the fault lies with myself*. 

... Unless I missed it, the OP hasn't indicated in their post that they informed the trader they were not a tradesperson so I think until the OP clarifies the point, we can only work off what the OP has given us which is that they purchased from a trades-only store...

Thanks.

Just to clarify - there's no suggestion that the OP actually bought from a trade only seller and held themself out as a tradesman.

That hare was set running when somebody remarked that the "handling charge" that the OP was complaining about was the sort of thing usually found in the T&Cs of businesses that only sell to trade customers, and that poster was speculating as to whether the OP may inadvertantly have bought from such a supplier.

There's no evidence so far that the OP represented himself as anything other than an ordinary consumer.

A_Geordie

Thanks, I stand corrected and must have confused the original post with the second one.