Item sent after order cancelled. Who pays return costs.

ADHDad

Hi. I placed an online order for an item that was listed as ‘In stock’. The retailer emailed me the following day to say that the stock listing was an error, the item was not in stock, but was due to come back into stock. I emailed after close of business on the same day to say that I needed the item by a specific date and to please cancel my order and refund me so that I could purchase elsewhere. I then purchased the item I sought via a different site.

The company emailed me at c.11am the following morning, thanking me for my email and informing me that they had found the item in stock after all and could dispatch it that day if I was happy to proceed, and to please let them know. 

Two hours later they emailed again to say that the item would be dispatched by Fed Ex, then emailed again shortly afterwards to say it had been dispatched.

I didn’t see any of their responses to my cancellation email until the close of business that day, at which point I emailed to say that I had already purchased the item elsewhere and reiterating my request to cancel and refund.

The item has now been delivered to my property (left in a safe place, so I had no option to refuse delivery), my credit card has been charged, and the retailer has sent me a postage address label. They want me to pay the return costs in line with their standard policy on returning delivered items.

My position is that I had cancelled the order before they dispatched it, and that they acknowledged receipt of the cancellation when they thanked me for my email and asked if I was happy to proceed, therefore they should not have dispatched it.

Their position is that my cancellation email arrived after “the dispatch phase” and therefore they had no reason to assume I didn’t want it. This appears nonsensical given that that my cancellation was sent in response to being told that the item was not in stock.

I have told them that I want a full refund and am prepared to return the item to a courier pick up point provided that they issue me with a prepaid return code. Otherwise they will have to arrange to collect it from my property. After a week of back and forth emails I have run out of patience and therefore I have given them a deadline of close of business today to issue both the refund and the return code, after which I will no longer be prepared to take the item to a courier point, I will escalate with my credit card company, and the retailer will need to arrange to collect from my property (I need the item to be refunded before I return as I suspect that otherwise they will deduct the return from my refund and leave me with the option of either swallowing it or suing them for postage costs).

Am I correct in thinking that they were in error when they posted the goods after I had cancelled the order and that therefore I am not responsible for the costs of returning the item? 

Thank you for any any advice on this.

the_lunatic_is_in_my_head

Can you link to the site OP, depends when they say acceptance occurs. 

ADHDad

Thanks. I can’t post with the link for some reason, but nowhere in their terms does it set out what happens in the event that they advertise a product as being in stock, then contact the customer to say this is an error and they are waiting for it to come into stock, the customer then cancels, they then email the customer again to say that it is in stock after all and can be dispatched if the customer is happy to proceed, then dispatch the item without receiving any response to indicate that the customer is happy to proceed, then seek to deduct both the original delivery cost and the return costs from the customer’s refund. Surely the contract is cancelled from the point at which I cancelled the order, 19 hours prior to them dispatching it??

eskbanker

ADHDad said:

I can’t post with the link for some reason

New posters aren't allowed to post links (anti-spam measure) but it's easily worked round by tweaking the text, e.g. replacing 'https' with 'hxxps'.  Even if it isn't viable to post a link, you can name the company!

the_lunatic_is_in_my_head

ADHDad said:

Thanks. I can’t post with the link for some reason, but nowhere in their terms does it set out what happens in the event that they advertise a product as being in stock, then contact the customer to say this is an error and they are waiting for it to come into stock, the customer then cancels, they then email the customer again to say that it is in stock after all and can be dispatched if the customer is happy to proceed, then dispatch the item without receiving any response to indicate that the customer is happy to proceed, then seek to deduct both the original delivery cost and the return costs from the customer’s refund. Surely the contract is cancelled from the point at which I cancelled the order, 19 hours prior to them dispatching it??

If they don't accept orders until dispatch then you simply withdrew the offer, no contract was formed and they should collect. 

If they accept orders upon payment then AFAIK standard cancellation regs apply which come with obligation to return, at your cost if stated as such.

It is common for it to be upon dispatch so retailers can cancel if they don't have the stock, or whatever, but some places say upon payment, some don't mention it which I think means acceptance upon payment but not 100% sure on that. 

Just company name will do and the name of the item if you wish to add  

TELLIT01

The company requested confirmation that the OP wanted to proceed with the purchase, and that was obviously not received.  The company should pay the return cost in my opinion.

ADHDad

Thanks all. T&Cs are here: 

hxxps://www..co.uk/terms-and-conditions

Section 2 states that:

2. Our Contract with you

2.1           Our acceptance of your order will take place when we send you a confirmation email to accept it, at which point a contract will come into existence between you and us.

But the Consumer Contracts Regulations 2013 states that I have a right to cancel the contract from the moment it was made. Given that I exercised that right before the company discovered that the item was actually in stock, and given that they acknowledged receipt of that cancellation implicitly by thanking me for it and asking if I was happy to proceed, the contract should have been cancelled before the item was dispatched, and therefore should never have been dispatched at all?? 

ADHDad

Whoops, that should have included:

utilitydesign

in between the two full stops after www

the_lunatic_is_in_my_head

Well their terms on cancelling are pretty terrible but 

 If you exercise your right to change your mind after products have been dispatched to you or you have received them, you must return them to us. You must either return the goods in person to where you bought them or post them back to us at Utility, 14A Compass West, Spindus Road, Liverpool L24 1YA. We do not accept goods being taken back to our stores due to storage limitations etc. We may arrange collection subject to prior agreement and collection charges are charged at cost and we will confirm this with you prior to arranging collection. We will then refund you, less any collection charges , initial delivery charges (there is a minimum of £6.50) incurred by us as a result. There will also be a £2.00 processing fee deducted from your refund. 

The regs say the trader should state

(m)where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

Their terms don't actually say that the consumer must bear the costs of return..... 

OP can what you purchased be returned via normal post or is it bulky? i.e what did you buy? 

To add when you say credit card was it actually a credit card (i.e not debit) and was it over £100 (or again what did you buy ) 

ADHDad

The item is small and cost just under £100. I could stand to pay the cost of return, but it’s the principle and the attitude of the trader that incenses me. Yes, the terms refer to the customer changing their mind after items have been dispatched, but:
a) I didn’t change my mind, they advertised the item as being in stock, then incorrectly told me that they didn’t have it stock, so I acted in response to the incorrect information they gave me, and
b) I cancelled the order before it was dispatched, not afterwards, and the trader knew that.

Yes, it was a credit card.