Too heavy to return to store for refund, they refuse to collect, rights please.

the_lunatic_is_in_my_head

Certainly not for your potato  

Okell

It does seem odd that the default position is that the trader is responsible for collecting "faulty" goods unless the consumer has agreed to return them.

Do many traders' T&Cs actually cover this situation?  (I mean specifically for "faulty" goods.  Or does a general returns policy cover this?)

powerful_Rogue

Okell said:

It does seem odd that the default position is that the trader is responsible for collecting "faulty" goods unless the consumer has agreed to return them.

Do many traders' T&Cs actually cover this situation?  (I mean specifically for "faulty" goods.  Or does a general returns policy cover this?)

Exactly. I still have my doubts. You're on holiday 200 miles away and a product you purchased instore at a little independant shop - Can't see why they would have the obligation to arrange the return.

Okell

Yet that is the inevitable conclusion of s20(7)(b).

I wonder what the person drafting it was thinking of at the time...

A_Geordie

@powerful_Rogue just wanted to make a comment about your post on the receipt and T&Cs, not every contract requires a set of terms and conditions. As we all know many contracts are done with a handshake and verbal agreements that don't have specific T&Cs but for most retail shops and except for a few I can think of, I don't know any other shops that have written terms for sales contracts they put in front of their customers before a purchase.. just not very consumer friendly, which is something I suspect was thought about by these businesses.

@okell I am surprised you find it odd about s20(7)(b). The immediate point I would make is that this legislation is intended for the protection of consumers and the idea is that the consumer should not bear additional burdens or costs of having to return faulty goods, particularly larger items which may be a struggle to return whereas traders are likely to have the means or the capability to collect and return them. I have a theory about the fairness or lawfulness of a trader's T&Cs to have the ability to require the consumer to return the faulty product as it essentially bypasses the CRA rights which in turn could be seen as contracting out since the decision to return or not should be up to the consumer. But it's just a theory and never tested.

The second point is that the majority of the sections of the CRA are taken from previous consumer legislation and combined into the CRA as a single Act. Not many "new" updates were made in the CRA although the remedies was one area that did provide for more enhanced rights. But I would point out that s20(7)(b) is essentially a regurgitation of the old s36 of the Sale of Goods Act 1979. 

Ergates

There are areas of consumer law that don't really seem fair if you apply them absolutely according to what is written.

A similar example is if you order something online and put in the wrong delivery address.  The goods will never arrive with you, therefore you are due a full refund.  It was your mistake but the retailer has to foot the bill for the postage and quite likely loss of goods.  You could even do it on purpose (it would be pretty impossible to prove).

the_lunatic_is_in_my_head

Okell said:

It does seem odd that the default position is that the trader is responsible for collecting "faulty" goods unless the consumer has agreed to return them.

I think we have become accustomed to people making an agreement, one side not living up to their end of the bargain and then doing their best to wiggle out of it, citing policy which is written to favour one party whilst ignoring the finer points of the legislation. 

This kind of behaviour isn't something a normal person would accept from a friend or family member and if they kept doing it you'd probably stop talking to them... 

Ergates said:

There are areas of consumer law that don't really seem fair if you apply them absolutely according to what is written.

Fair is pretty subjective, in the case of the OP someone has taken the time to go to a store, load the goods in a trolly, then in the car, then in the house, cleared a room of furniture, gathered their tools, set time aside to perform a task (or in this case hired someone to do so) and has now wasted all that time due to a breach of an agreement. To have to then load that stuff back in the car and go back to the store sounds unfair to me.

Granted if you buy a tea cup from Tesco and get home to find it's chipped you could have had a closer look in store and are probably going back to the store at some point soon anyway so it's not that great a hardship to return a portable item but I'm guessing it's not that easy to check whether a sealed pack of flooring is warped or has hidden damaged until you get home and open it, it's certainly a pain in the behind to then have to lug something like this back to the store.

With a lot of these things the "unfairness" the trader is burdened with can be avoided by having correctly written terms, if Costco does bind the customer to return rejected goods then the customer has a chance to assess whether they wish to risk such a purchase. 

It's also worth noting, unless OP's friend was exercising their short term right to reject, Costco should replace and bear all the reasonable costs in doing so. 

A_Geordie

Ergates said:

There are areas of consumer law that don't really seem fair if you apply them absolutely according to what is written.

A similar example is if you order something online and put in the wrong delivery address.  The goods will never arrive with you, therefore you are due a full refund.  It was your mistake but the retailer has to foot the bill for the postage and quite likely loss of goods.  You could even do it on purpose (it would be pretty impossible to prove).

Can you elaborate on your example, why would the retailer have to foot the bill if the customer put in the wrong delivery address? That would be a customer fault and not a retailer one, so any loss or cost would have to be borne by the customer since the retailer has no control over the input of the delivery address unless they did it themselves.

In almost all B2C cases, the terms and conditions are heavily in favour of the business and if businesses had their own way, their terms would be drafted in such a way that it would be practically or financially impossible to return faulty goods thereby allowing the business to get away with it. All of the bargaining power lies with the business and there is no opportunity for the consumer to negotiate which is where the consumer protection legislation comes into play, to address that imbalance.

Sure some consumer rights could be seen as unfair or onerous but that's the cost of doing business in this arena. It puts the onus back on to the business to ensure that they provide a quality product to consumers and not any old junk and then allow them to get away with it (though many still do). B2B arrangements are more likely to be in a position to negotiate better terms than a consumer. 

Ergates

Passing of risk

43.—(1) A sales contract is to be treated as including the following provisions as terms.

(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.

Nothing about "delivered to the address of the consumer" or "delivered to the address specified by the consumer"

It's the same principal that if a courier drops a parcel off on your (correct) doorstop because you're out and someone steals it before you get it, it's the retailers loss.

Add in:

Time for delivery of goods

42.—(1) This regulation applies to any sales contract.

(2) Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer.

(3) Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—

(a)without undue delay, and

(b)in any event, not more than 30 days after the day on which the contract is entered into.

...

(9) If the consumer treats the contract as at an end under paragraph (6) or (8), the trader must without undue delay reimburse all payments made under the contract.

Obviously, if they don't have your actual address, they're not going to be able to deliver the goods to you within any given time limit.  There's nothing in there about "Unless the consumer gives you the wrong address".

In theory, what should happen is the couriers should never just drop something on someone's doorstep, they should always ensure that it's handed over to someone, and they should check that someone is the person named on the delivery.  In practice, this would be massively inconvenient for nearly everyone involved, so we don't want that.

A_Geordie

You are right, there's nothing to suggest the customer is responsible but, if I were a business I would ensure that any contract terms say that if the consumer has made an error in the delivery address, the business will take reasonable steps to recover the package (at the consumer's cost) and re-deliver. Of course, the business will still have the risk for loss or damage but those costs could be recuperated through their attempts to recover the package. The business is unlikely to be able to charge for any replacement or loss by virtue of section 31 but it would be up to the consumer to argue otherwise. The CMA Guidance on Unfair Terms suggests it is likely to be unfair to hold the consumer responsible for loss or damage before the goods are delivered but it appears silent on unfairness after delivery. 

There is also the longstanding English law principle that dates back to a case in the 1800s, that one cannot benefit from their own wrong. The consumer having negligently put in the wrong delivery address, cannot then suddenly expect to benefit from that negligence at the expense of the business.That then leads to the question, was it really Parliament's intention for this clause to allow consumers to benefit from their own wrongdoing or negligence? The answer to that is likely to be a resounding no. Rather it was intended to protect consumers where delivery failed to reach them as opposed to consumers incorrectly delivering to the wrong address.

Sadly, I am not aware of any specific authority on this point but given that a lot of the rights and remedies derived from EU law transposed into local law and the commentary makes it clear consumers should be protected, I suspect you are right that the consumer may have the upper hand with respect to risk and delivery, though not a bad thing in my eyes as a consumer. The cost of doing business in a consumer industry. 

As for the doorstep deliveries, my local postman and other couriers do actually ask my name before they hand it over. Doesn't inconvenience me but that is the formal way to go in order to comply with the CRA.