Phone missing from DPD package

HillStreetBlues

Boohoo said:

I just checked the weight for this mobile on Samsung website and it says 239g so under the weight on the package but this doesn't include the phone box packaging and other bits.

That's why OP should weigh everything that came, add the 239g and will be over 300g

EnPointe

HillStreetBlues said:

Agree with above.
Put back everything in the box then weight it, as this will be the major part of your "proof"

that assumoes that whoever fulfills for Samsung actually  checkweighs  the parcels before printing the label rather than having an agremeent over a nominal weight  for the packages ...  there are a number of major retailers who don;t checkweight they just have  cameras over the packing benchs to demonstrate that the correct item was put in to the package   at their dispatch

Colloydan

There were Galaxy Buds Pro and a Galaxy Ring sizing kit in the package too.

A_Geordie

eskbanker said:

A_Geordie said:

Sounds like the creditor under the finance agreement are responsible, not Samsung. It would be the creditor who would have sold the OP the phone having paid Samsung and the OP paying the creditor back on finance.

OP can obviously confirm but it would be more typical for the consumer to have contracted directly with the merchant, even though there may also be a funding arrangement, so if s75 applies then this is in addition to the customer's rights against the merchant, rather than instead of them.

The OP has specifically mentioned a finance agreement so that would typically rule out s75 unless the OP paid a deposit on credit card. More often than not, the merchant is not the lender for financing purposes so it will either be another Samsung entity as part of the group of Samsung companies that is authorised by the FCA or, it will be an entirely independent third party.

Having looked at the Samsung website and specifically the financing options, it says: 



So, credit is provided by Glow Financial Services Limited as the lender for the purposes of the finance agreement.The transaction would have been three-way: Samsung sells the goods to Glow and Glow simultaneously agrees to sell those goods to the OP on finance under the credit agreement between Glow and the OP. Samsung has no role to play in this since technically it did not sell to the OP but rather to Glow.

                                                                                                                                                                                                                                                                                                                                 

eskbanker

A_Geordie said:

eskbanker said:

A_Geordie said:

Sounds like the creditor under the finance agreement are responsible, not Samsung. It would be the creditor who would have sold the OP the phone having paid Samsung and the OP paying the creditor back on finance.

OP can obviously confirm but it would be more typical for the consumer to have contracted directly with the merchant, even though there may also be a funding arrangement, so if s75 applies then this is in addition to the customer's rights against the merchant, rather than instead of them.

The OP has specifically mentioned a finance agreement so that would typically rule out s75 unless the OP paid a deposit on credit card. More often than not, the merchant is not the lender for financing purposes so it will either be another Samsung entity as part of the group of Samsung companies that is authorised by the FCA or, it will be an entirely independent third party.

Having looked at the Samsung website and specifically the financing options, it says: 



So, credit is provided by Glow Financial Services Limited as the lender for the purposes of the finance agreement.The transaction would have been three-way: Samsung sells the goods to Glow and Glow simultaneously agrees to sell those goods to the OP on finance under the credit agreement between Glow and the OP. Samsung has no role to play in this since technically it did not sell to the OP but rather to Glow.

But that's exactly the sort of debtor-creditor-supplier arrangement that s75 protects, as long as the credit agreement is deemed to be a regulated one - although s75 is typically associated with credit cards now, it was originally enacted to protect bespoke credit agreements that were more prevalent in 1974.

A_Geordie

Not all D-C-S arrangements are covered by s75 and the example I gave is not covered. Credit cards are unrestricted-use credit whereas the OP here has opted for restricted-use credit because the credit is used specifically to finance the goods purchased from Samsung. 

For s75 to apply in restricted-use credit agreements, the credit would need to finance a transaction either (i) between the debtor and the supplier (who is not the creditor) or (ii) an existing debt. It does not apply where the credit is used to finance an agreement between the debtor and the creditor i.e. the example I gave.

The only way I see that s75 would come into play is if the finance agreement with Glow states that the contract for the sale of the goods is between the OP and Samsung and the credit is a loan used to pay Samsung with ownership of the goods belonging to the OP from the start. That would likely fall into (i) above and so s75 would apply in that case which would indicate that any claim the OP has, would be against Samsung directly.

However, this sort of arrangement can be similar to a credit sale agreement where the creditor purchases the goods from Samsung and then offers those goods to the OP with ownership being given from the start, and the credit is  repayable by instalments - that would not be covered by s75 since the finance is used to form an agreement between the Glow and the OP. 

OP will need to confirm in their agreement how it is worded as that will determine what kind of credit agreement it is. 

born_again

A_Geordie said:

eskbanker said:

A_Geordie said:

Sounds like the creditor under the finance agreement are responsible, not Samsung. It would be the creditor who would have sold the OP the phone having paid Samsung and the OP paying the creditor back on finance.

OP can obviously confirm but it would be more typical for the consumer to have contracted directly with the merchant, even though there may also be a funding arrangement, so if s75 applies then this is in addition to the customer's rights against the merchant, rather than instead of them.

The OP has specifically mentioned a finance agreement so that would typically rule out s75 unless the OP paid a deposit on credit card. More often than not, the merchant is not the lender for financing purposes so it will either be another Samsung entity as part of the group of Samsung companies that is authorised by the FCA or, it will be an entirely independent third party.

Having looked at the Samsung website and specifically the financing options, it says: 



So, credit is provided by Glow Financial Services Limited as the lender for the purposes of the finance agreement.The transaction would have been three-way: Samsung sells the goods to Glow and Glow simultaneously agrees to sell those goods to the OP on finance under the credit agreement between Glow and the OP. Samsung has no role to play in this since technically it did not sell to the OP but rather to Glow.

                                                                                                                                                                                                                                                                                                                                 

Why.
This is the whole point of S75. Same as when buying a car etc.

The only thing that would negate S75 here was if it was a BNPL agreement.

https://www.samsungfinance.co.uk/

Colloydan

Have attached a copy of the credit agreement - my details removed.  Pages seem to have gotten out of order. c

Colloydan

Could I just cancel the order/finance agreement, send back what was sent to me, i.e. the Galaxy Buds, Ring kit and an empty phone box.  I paid around a £100 deposit and haven't made any other payments on the finance agreement yet.  I'm within the 14 day cooling off period.  Thanks.

A_Geordie

@born_again I explained the reasons why in my last post but if you want a more definitive answer, then you should read sections 75, 12 and 11 of the CCA together with the associated definitions in section 189. Not all finance agreements used for car sales means that s75 applies - hire purchase and conditional sale agreements are examples of that where the credit will be used to finance an agreement between the creditor and the debtor, unless the debtor pays a deposit using an unrestricted credit agreement such as a credit card, then the debtor would be afforded protection under s75.

@Colloydan your agreement is a restricted-use credit agreement and one which falls within the protection of s75. The contract confirms that the credit is used to finance the goods you are looking to get from Samsung and that it is subject to Samsung's terms of sale (so in terms of ownership of the goods, they pass when the payment for goods have been made). Not that it is required but the contract also confirms that you can sue Samsung and Glow  or both at the same if there is a breach of contract, referencing the £100 and £30,000 criteria under s75. If you also paid £100 deposit via credit card then that would further reinforce your right under s75, but this detail should have been given at the start.

As for cancelling, you can cancel in accordance with Clause 8 but as you have no phone, the refund that Samsung are likely to give Glow is for the Galaxy Buds and Ring Kit meaning there will be outstanding balance left with Glow for you to pay. Fail to pay that and you will likely find yourself with a default on your credit file and a court claim from Glow for the outstanding debt balance.

Your best bet here is to exercise your consumer rights i.e. the phone was not delivered in the box and the onus is on Samsung or Glow to prove that it was physically delivered to you. The box and the labelling will prove crucial in showing that the overall weight meant that it couldn't have contained all items you had ordered. However, be prepared that you might have to take this to court in order to resolve it as I suspect Glow will rely on the evidence provided by Samsung which is that a parcel was delivered.