Cancelled Online Treadmill Order within 2 hours and item still dispatched

Okell

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

RefluentBeans

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

Whilst I generally agree with you - and that a consumer actively stopping successful delivery in order to get free return shipping does not seem in the spirit of the legalisation - looking at purely facts - this does seem that it is allowed as risk doesn’t transfer until delivered; and so it’s down to the retailer in how they keep that product safe whilst it is in their custody. I don’t like it, and it feels like it’s ripe for abuse, but if the risk never transfers, then the consumer doesn’t need proof it was returned to the sender. 

Whilst this is all good in theory, it is another question in how this plays out in the real world and it surely will depend how the OP plans to refuse delivery. Given most companies will just knock, put parcel down, and then take the photo the second the door opens (at least by me…) then that surely constitutes as successful delivery. Just because the OP doesn’t want it anymore doesn’t mean they can’t attempt to to deliver. 

MumofCR

Sounds like I’m going to have to chalk it up to experience and do a lot more research in future!

Thanks for all the help.

born_again

RefluentBeans said:

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

Whilst I generally agree with you - and that a consumer actively stopping successful delivery in order to get free return shipping does not seem in the spirit of the legalisation - looking at purely facts - this does seem that it is allowed as risk doesn’t transfer until delivered; and so it’s down to the retailer in how they keep that product safe whilst it is in their custody. I don’t like it, and it feels like it’s ripe for abuse, but if the risk never transfers, then the consumer doesn’t need proof it was returned to the sender. 

Whilst this is all good in theory, it is another question in how this plays out in the real world and it surely will depend how the OP plans to refuse delivery. Given most companies will just knock, put parcel down, and then take the photo the second the door opens (at least by me…) then that surely constitutes as successful delivery. Just because the OP doesn’t want it anymore doesn’t mean they can’t attempt to to deliver. 

They would for a chargeback 👍

RefluentBeans

born_again said:

RefluentBeans said:

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

Whilst I generally agree with you - and that a consumer actively stopping successful delivery in order to get free return shipping does not seem in the spirit of the legalisation - looking at purely facts - this does seem that it is allowed as risk doesn’t transfer until delivered; and so it’s down to the retailer in how they keep that product safe whilst it is in their custody. I don’t like it, and it feels like it’s ripe for abuse, but if the risk never transfers, then the consumer doesn’t need proof it was returned to the sender. 

Whilst this is all good in theory, it is another question in how this plays out in the real world and it surely will depend how the OP plans to refuse delivery. Given most companies will just knock, put parcel down, and then take the photo the second the door opens (at least by me…) then that surely constitutes as successful delivery. Just because the OP doesn’t want it anymore doesn’t mean they can’t attempt to to deliver. 

They would for a chargeback 👍

But not for a claim on the consumer rights side. Like I said I think it’s a risky strategy, and not something I would endorse (after all - the retailer may just say once it’s left their depot it’s not their responsibility anymore - legally incorrect but only way to force the hand is by a court judgement). 

Okell

RefluentBeans said:

born_again said:

RefluentBeans said:

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

Whilst I generally agree with you - and that a consumer actively stopping successful delivery in order to get free return shipping does not seem in the spirit of the legalisation - looking at purely facts - this does seem that it is allowed as risk doesn’t transfer until delivered; and so it’s down to the retailer in how they keep that product safe whilst it is in their custody. I don’t like it, and it feels like it’s ripe for abuse, but if the risk never transfers, then the consumer doesn’t need proof it was returned to the sender. 

Whilst this is all good in theory, it is another question in how this plays out in the real world and it surely will depend how the OP plans to refuse delivery. Given most companies will just knock, put parcel down, and then take the photo the second the door opens (at least by me…) then that surely constitutes as successful delivery. Just because the OP doesn’t want it anymore doesn’t mean they can’t attempt to to deliver. 

They would for a chargeback 👍

But not for a claim on the consumer rights side. Like I said I think it’s a risky strategy, and not something I would endorse (after all - the retailer may just say once it’s left their depot it’s not their responsibility anymore - legally incorrect but only way to force the hand is by a court judgement). 

Depends what you mean by "a claim on the consumer rights side".

If you mean a claim under s29 of the Consumer rights Act against the trader, the OP still has the problem of enforcing that against a trader apparently based in HK.

But if you mean making a chargeback claim on the basis of s29, my understanding is that that is not an option.  I used to assume that a chargeback applied to any breach of contract (whether under Consumer rights Act or otherwise) but @born_again has made it clear on many previous occasions that eligibility for a chargeback is quite limited.

For example, as regards faulty goods, chargeback only applies if the goods are manifestly faulty when they arrive, and, despite s29 of the Consumer Rights Act, proof of delivery to any address (even the wrong address) will defeat a chargeback.  (Apologies if you are already aware of this, but it was a bit of a surprise to me when I learned about it)

RefluentBeans said:

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

As an aside, the OP asked if they could refuse delivery, and some people seem to have suggested that that might be possible.

Would that really work?

Can you order something, have no further communication with the seller, then refuse delivery and expect the courier to take it away and return it?

I'm very skeptical about that working...

With a UK company in theory yes as EU guidance says: 

Where the consumer has never taken physical possession of the goods, e.g. by refusing to take delivery, either without any explicit statement or with a statement to the trader about withdrawal from the contract, the trader would continue bearing the risk of loss or damage since no transfer of risk to the consumer will have taken place according to Article 20.

Article 20 being passing of risk which forms part of the CRA. 

I say in theory as we've moved away from the EU obviously however IMO when articulating your position their guidance is still a good point to focus in the absence of any other information/case law...

Hmmm...

I didn't realise the EU guidance specifically gave refusing delivery as an example of where risk didn't pass.

If it's in the EU guidance I suspect a court here would follow it.

There's something about refusing delivery that doesn't seem right to me.

Maybe it's this...

born_again said:

MumofCR said:

Thank you for all the replies. 

So if I’m reading this correctly, should I accept the delivery and then attempt to organise return of the treadmill at my own expense? Would I be able to do a chargeback on the debit card if I then don’t get any joy with a refund?

... You also have the issue that if refusing delivery, you may not get any proof of return...

... and it surely will depend how the OP plans to refuse delivery. Given most companies will just knock, put parcel down, and then take the photo the second the door opens (at least by me…) then that surely constitutes as successful delivery. Just because the OP doesn’t want it anymore doesn’t mean they can’t attempt to to deliver. 

This is what I think concerns me - I'm not sure I understand how you go about refusing a delivery in practice

If a courier attempts to deliver a package to you and you are physically present at the time but say "I'm refusing delivery. Take it back" I suspect the courier will just take a photo of your legs in the doorway and leave it on your doorstep despite anything you say about not accepting it.  If you are present at the time I'd be worried that any court might take it that because you were aware of the delivery, that it was in your possession and you were responsible for it.

Refusing delivery seems a bit like clutching at straws to me and very much a last resort.  It leaves the consumer at risk of having no goods and no refund if the seller is outside the jurisdiction.

Which is a pity in this case as the trader advertises that orders can be cancelled before dispatch but has ignored the OP's cancellation.

As others have said, OP's best bet might be just to accept it and then either (a) use it - after all she wanted it at some point, or (b) resell it

the_lunatic_is_in_my_head

Okell said:

If a courier attempts to deliver a package to you and you are physically present at the time but say "I'm refusing delivery. Take it back" I suspect the courier will just take a photo of your legs in the doorway and leave it on your doorstep despite anything you say about not accepting it.  If you are present at the time I'd be worried that any court might take it that because you were aware of the delivery, that it was in your possession and you were responsible for it.

Very much depends on the person doing the delivery, our postman would no doubt mark as refused and take back, same with DHL, even Evri as I can text the driver and RTS is probably easier than coming to our house. But yes if the service is bad, they ignore you and dump it I guess you are stuffed in terms of refusing delivery. 

But upon reflection, in a case where a consumer has withdrawn their offer (if dealing with a UK trader) passing of risk doesn't come in to play as there is no contract, I assume instead they are an involuntarily bailee and have the obligation to take care of the goods, is refusing delivery and letting it go back with the other party's agent a lack of care? Hardly sounds like such to me  

MumofCR

I had a reply from the message I sent to the retailer and they told me to refuse delivery of the treadmill. Luckily the delivery company were happy for me to refuse delivery when they saw the message from the retailer.
Fingers crossed it is returned successfully to the retailer and a refund is issued.

Grumpy_chap

MumofCR said:

I had a reply from the message I sent to the retailer and they told me to refuse delivery of the treadmill. Luckily the delivery company were happy for me to refuse delivery when they saw the message from the retailer.
Fingers crossed it is returned successfully to the retailer and a refund is issued.

That seems good.

Keep a copy of that message.  It may be useful to support chargeback if the supplier does not refund properly and timely.