Excessive handling charge for returning unwanted goods

PHK

So, OP where did you buy the lights from?

born_again

TELLIT01 said:

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.

Neither did they say they were too big 🤷‍♀️

Another mystery  😜

the_lunatic_is_in_my_head

A_Geordie said:

Link: Case C-464/01 Johann Gruber v Bay Wa AG 

Thanks @A_Geordie, always interesting to read such cases, I appreciate the time taken to post Just a quick question, I'm unsure what came before the current EU Directives concerning consumer rights but with this being in 2005 was the requirements of liability that can not be excluded in a consumer contract present in any EU law at the time?

A_Geordie

the_lunatic_is_in_my_head said:

A_Geordie said:

Link: Case C-464/01 Johann Gruber v Bay Wa AG 

Thanks @A_Geordie, always interesting to read such cases, I appreciate the time taken to post Just a quick question, I'm unsure what came before the current EU Directives concerning consumer rights but with this being in 2005 was the requirements of liability that can not be excluded in a consumer contract present in any EU law at the time?

Back then, there were a number of different EU directives such as the Doorstep Selling Directive, Distance Selling, Unfair Contract Terms etc. and the Consumer Rights Directive (CRD) around 2011ish was intended to harmonise all of those directives but in the end the CRD only ended up repealing some of the directives like the Doorstep Selling Directive. Other Directives were simply amended to reflect updates to the CRD and we are where we are now with the CRA as well as the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and other subsets of regulations where the Directives remained in force.

Without going back to those directives, I couldn't say but it is likely there would have been some kind of similar wording in one or more of those directives since they were all intended to act as a shield in B2C contracts.

the_lunatic_is_in_my_head

A_Geordie said:

the_lunatic_is_in_my_head said:

A_Geordie said:

Link: Case C-464/01 Johann Gruber v Bay Wa AG 

Thanks @A_Geordie, always interesting to read such cases, I appreciate the time taken to post Just a quick question, I'm unsure what came before the current EU Directives concerning consumer rights but with this being in 2005 was the requirements of liability that can not be excluded in a consumer contract present in any EU law at the time?

Back then, there were a number of different EU directives such as the Doorstep Selling Directive, Distance Selling, Unfair Contract Terms etc. and the Consumer Rights Directive (CRD) around 2011ish was intended to harmonise all of those directives but in the end the CRD only ended up repealing some of the directives like the Doorstep Selling Directive. Other Directives were simply amended to reflect updates to the CRD and we are where we are now with the CRA as well as the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and other subsets of regulations where the Directives remained in force.

Without going back to those directives, I couldn't say but it is likely there would have been some kind of similar wording in one or more of those directives since they were all intended to act as a shield in B2C contracts.

Thanks A_Geordie, I find it interesting that the CRA has a section to specifically rule out contracting out the various parts of the Act, I would have thought it were a given that what was written in law couldn't be waived simply by terms and conditions. 

The Sale of Goods Act was a little more loose with consumer rights, the concept of acceptance meant that if you received a washing machine with a dent but plumbed it and used it you were stuck with the dent where as this concept of acceptance was eradicated in the CRA and the rights afforded in general appear more comprehensive giving consumers stronger rights than before it's conception. 

I still feel these places that say trade only but allow you to wizz through checkout without any barrier other than simply stating trade only are on thin ice with regards to denying consumer rights to those who are consumers and haven't provided any false information to suggest otherwise. 

I guess in the main it's expensive for companies to defend claims so they are probably better off just accepting a customer's claim and then not selling to them again but as with many topics on here they will no doubt make that as difficult as possible in the hope the customer gives up and simply goes away. 

A_Geordie

Can you elaborate a bit more on what you mean that the SGA was a little more loose than the CRA? A lot of the language in the SGA largely remained the same when the CRA came into effect. What did change was the remedies which were more enhanced.

It was the Sale and Supply of Goods Regulations 2002 that amended the SGA to incorporate consumer rights. Those amendments included the non-conformity within the first six months and the reverse burden of proof being on the seller to prove it didn't conform at the time of sale or delivery - both of those are retained in the CRA. Plumbing in and using the washing machine wouldn't have necessarily eradicated a consumer's right to a remedy, but it may depend on the specific facts of that issue. 

Whilst I am all for consumer rights, there comes a point where you have to stop and say look, an application of common sense applies and we should trust those consumers to use their common sense. Our legal rules operate to allow businesses the freedom to run their business how they want (within reason) and I think it would set a dangerous precedent if the government or courts started interfering and dictating how they should be run, otherwise there is a risk that the wheels of commerce would grind to a halt or you may find more and more businesses close down due to additional costs in meeting these requirements and thus stifling competition. 

It's a balancing act and we can't please everyone, but I think it is right that if a consumer wants to purchase something from a trade-only shop, knowing that they don't deal with consumers (which is their right to do so) and without saying that they are not a tradesperson, then the consumer can't complain if something goes wrong and then try to rely on consumer rights legislation. It's no different to a personal injury or negligence case where the injured person contributed to that injury or negligence and a court may reduce an award that is given, potentially up to 100% depending on the extent of that contribution. 

But you are right, for the most part, companies will often settle due to it not being commercially viable to defend but there are some companies in my experience will act on principle and defend a claim if they feel it is warranted and the consumer is taking the mick (Currys springs to mind). 

Ergates

A_Geordie said:

It's a balancing act and we can't please everyone, but I think it is right that if a consumer wants to purchase something from a trade-only shop, knowing that they don't deal with consumers (which is their right to do so) and without saying that they are not a tradesperson, then the consumer can't complain if something goes wrong and then try to rely on consumer rights legislation. It's no different to a personal injury or negligence case where the injured person contributed to that injury or negligence and a court may reduce an award that is given, potentially up to 100% depending on the extent of that contribution. 

I think the VAT is an important factor in this.  Given it would be illegal for a consumer to knowingly avoid paying VAT and trade-only stores don't charge VAT, that means a consumer has (in a round about way) a legal obligation to tell the retailer that they are a consumer (and/or to not use the store).

the_lunatic_is_in_my_head

A_Geordie said:

Can you elaborate a bit more on what you mean that the SGA was a little more loose than the CRA? A lot of the language in the SGA largely remained the same when the CRA came into effect. What did change was the remedies which were more enhanced.

If you take a simply section such as passing of risk CRA says:

(2)The goods remain at the trader's risk until they come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

and that section can not be contracted out

SOGA says

(1)Unless otherwise agreed, the goods remain at the seller’s risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not.

(2)But where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party at fault as regards any loss which might not have occurred but for such fault.

Passing of risk is much tighter on the trader in the CRA than the SOGA particularly as it suggests it can be agreed otherwise (presumably via terms).

A_Geordie said:

Whilst I am all for consumer rights, there comes a point where you have to stop and say look, an application of common sense applies and we should trust those consumers to use their common sense. 

It's a balancing act and we can't please everyone

The issue is the EU courts have ruled on several occasions that the trader is the expert in the situation and the consumer is basically a lost little sheep. 

You are correct that consumer rights are to rebalance this particular point which often means they weigh heavy on the trader. 

A_Geordie said:

 Our legal rules operate to allow businesses the freedom to run their business how they want (within reason) and I think it would set a dangerous precedent if the government or courts started interfering and dictating how they should be run, otherwise there is a risk that the wheels of commerce would grind to a halt or you may find more and more businesses close down due to additional costs in meeting these requirements and thus stifling competition. 

I kind of disagree with this, increased regulation does indeed stifle competition but generally by creating a barrier to entry to market meaning that the existing larger companies or new comers with strong financial backing are in a position to meet regulation where as small family business simply don't have the finances available to survive or enter the market to begin with. 

(Consumer rights aside) increased regulation for landlords demonstrates this, small time selling up, Lloyds Bank wanting to be a "giant" landlord and own 50,000 homes. 

So the reason I disagree is that big businesses are more profitable if the additional costs prevent competition, assuming those costs or regulations don't push them to the brink of closure, and let's face it, asking someone for a VAT number, LTD number, trade reference, copy of a letterhead or business card before being able to be a customer is hardly an imposition when the company are seeking trade customers who buy from them on a regular basis and those genuine trade customers will very happily pass a few barriers to obtain keener pricing in order to be able to turn a profit. 

Ergates said:

I think the VAT is an important factor in this.  Given it would be illegal for a consumer to knowingly avoid paying VAT and trade-only stores don't charge VAT, that means a consumer has (in a round about way) a legal obligation to tell the retailer that they are a consumer (and/or to not use the store).

I've never had a wholesaler, distributor or any kind of trade company bill me with out VAT, with the exception of services from companies based outside the EU where it was instead accounted under the reverse charge mechanism.

Edited to add reverse charge may apply to goods as well if outside the EU and outside the EU may be different these days due to Brexit.

user1977

Ergates said:

A_Geordie said:

It's a balancing act and we can't please everyone, but I think it is right that if a consumer wants to purchase something from a trade-only shop, knowing that they don't deal with consumers (which is their right to do so) and without saying that they are not a tradesperson, then the consumer can't complain if something goes wrong and then try to rely on consumer rights legislation. It's no different to a personal injury or negligence case where the injured person contributed to that injury or negligence and a court may reduce an award that is given, potentially up to 100% depending on the extent of that contribution. 

I think the VAT is an important factor in this.  Given it would be illegal for a consumer to knowingly avoid paying VAT and trade-only stores don't charge VAT, that means a consumer has (in a round about way) a legal obligation to tell the retailer that they are a consumer (and/or to not use the store).

I think you misunderstand how VAT works! Everyone gets charged VAT, but the VAT-registered customers can reclaim it.

A_Geordie

(2)The goods remain at the trader's risk until they come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

and that section can not be contracted out

SOGA says

(1)Unless otherwise agreed, the goods remain at the seller’s risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not.

(2)But where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party at fault as regards any loss which might not have occurred but for such fault.

Passing of risk is much tighter on the trader in the CRA than the SOGA particularly as it suggests it can be agreed otherwise (presumably via terms).

See Regulation 4 of The Sale and Supply of Goods to Consumers Regulations 2002:

(1) Section 20 of the Sale of Goods Act 1979 is amended as follows. For the marginal note there is substituted “Passing of risk”.

(2) After subsection (3) there is inserted—

“(4) In a case where the buyer deals as consumer or, in Scotland, where there is a consumer contract in which the buyer is a consumer, subsections (1) to (3) above must be ignored and the goods remain at the seller’s risk until they are delivered to the consumer.”.

(3) In section 32 of the Sale of Goods Act 1979, after subsection (3) there is inserted—

“(4) In a case where the buyer deals as consumer or, in Scotland, where there is a consumer contract in which the buyer is a consumer, subsections (1) to (3) above must be ignored, but if in pursuance of a contract of sale the seller is authorised or required to send the goods to the buyer, delivery of the goods to the carrier is not delivery of the goods to the buyer.”.

The purpose of this amendment was that there was an assumption that transfer of risk can pass to the buyer before the time it was actually delivered to them. The principle here is not too dissimilar tot he CRA the same albeit the language has been re-drafted to make it clear in the CRA that goods has to come into the physical possession of the consumer for risk to transfer, and not just a safe place for example. The SOGA used different language to the CRA preferring to say that these terms are implied into any applicable consumer contract which is another way of saying you can't contract out of them when you deal with consumers.

The issue is the EU courts have ruled on several occasions that the trader is the expert in the situation and the consumer is basically a lost little sheep. 

You are correct that consumer rights are to rebalance this particular point which often means they weigh heavy on the trader. 

I agree and I don't think it's limited to the EU, almost every country has recognised that a consumer is viewed as the weaker party when it comes to contracting with businesses, which is why there are consumer protection laws. However, those laws were intended to be used as a shield and not a sword. In the current debate, the consumer would be using consumer rights law as a sword to achieve something that was not intended i.e. to recognise a consumer contract when the trader had no intention of creating one. When you look at the history of consumer laws and why they were enacted, that was certainly not the intention of any government or EU member state.

So the reason I disagree is that big businesses are more profitable if the additional costs prevent competition, assuming those costs or regulations don't push them to the brink of closure, and let's face it, asking someone for a VAT number, LTD number, trade reference, copy of a letterhead or business card before being able to be a customer is hardly an imposition when the company are seeking trade customers who buy from them on a regular basis and those genuine trade customers will very happily pass a few barriers to obtain keener pricing in order to be able to turn a profit. 

I don't necessarily disagree with your reasoning, I just have a different view point. It may not be an imposition for some companies but could be for others. What if the trades person didn't have any valid documentation on them in store? The seller would not deal with them and potentially that trades person could go elsewhere, causing the business to lose out on a sale. The same could equally apply to online orders, time spent vetting trades persons may end up with lost business especially if the trades person is in a rush to purchase something.

As far as I'm concerned, we don't need additional regulation or protections when something is plainly obvious and if a shop states that they only sell to trades people, nobody can argue that is not plainly a obvious statement - consumers shouldn't have to be nannied every step of the transactional process.