Refund refused due to excessive wear

eskbanker

the_lunatic_is_in_my_head said:

Terms don’t comply any way so cancellation period is 1 year and 14 days.

Happy to be corrected about that but perhaps worth expanding on the gap between their wording and what CCR requires, to give Pippa some bullets to fire at them, if she's going to need to rely on the extended cancellation period?

Okell

eskbanker said:

I hadn't spotted that wording within their returns policy - confirming the customer's right to cancel would normally be in a section of its own rather than being buried within a 'return details' section, but I don't know if it would reasonably be interpreted as satisfying the information requirements of s34(11) ("where a right to cancel exists, the conditions, time limit and procedures for exercising that right")...

I didn't see any reference to "cancellation" in their T&Cs either.

Is it definitely there or are they trying to blag their way out of it?

@Pippa11 -  what exactly had you said to them to cause that repsonse?

eskbanker

Okell said:

eskbanker said:

I hadn't spotted that wording within their returns policy - confirming the customer's right to cancel would normally be in a section of its own rather than being buried within a 'return details' section, but I don't know if it would reasonably be interpreted as satisfying the information requirements of s34(11) ("where a right to cancel exists, the conditions, time limit and procedures for exercising that right")...

I didn't see any reference to "cancellation" in their T&Cs either.

Is it definitely there or are they trying to blag their way out of it?

The wording they quote is indeed there, but not in a particularly obvious way (hence both of us missing it initially!):

Return Details

From receiving your order you have 28 days to have it in the post to us for a refund or store credit.

We will refund the card which was used to place the order.

We endeavour to process your refund or store credit within 2 working days of us receiving the goods. This should be well within your Statutory Rights of 14 days having left your possession. 

Unless you specifically cancel your entire order by emailing us with your name, order number, address and details of the cancelled item/s, you will not receive a refund for the basic rate of outgoing postage. Cancelling only applies to UK orders.

Pippa11

Okell said:

eskbanker said:

I hadn't spotted that wording within their returns policy - confirming the customer's right to cancel would normally be in a section of its own rather than being buried within a 'return details' section, but I don't know if it would reasonably be interpreted as satisfying the information requirements of s34(11) ("where a right to cancel exists, the conditions, time limit and procedures for exercising that right")...

I didn't see any reference to "cancellation" in their T&Cs either.

Is it definitely there or are they trying to blag their way out of it?

@Pippa11 -  what exactly had you said to them to cause that repsonse?

This is my email that preceded their latest response: 

Hello,

You are misrepresenting the legislation, which states:

29.-(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason and without incurring any liability except under these provisions - 34(3), 34(9), 35(5) or 36(4).  

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

34 (9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

I cannot find any information regarding the right to cancel on your website which would, in accordance with paragraph 11 render paragraph 9 void. 

A_Geordie

Pippa11 said:

I’m not sure where to go from here, I don’t want the shoes back but they sound like they will not change their minds. If I send them a letter before action I’m not sure it will make any difference. To make matters worse my son paid for them and doesn’t have a credit card so they were paid by debit card so no chance of claiming that way. It’s all making me very stressed! 

Respectfully, I'm not entirely sure why you are getting so stressed about this when it's your son who contracted with the retailer, not you. Things like this happen on a daily basis and it's a fact of life. 

Surprisingly, no one has yet pointed out the fact that your son, in the eyes of the law is treated as a minor since he is not yet 18 at the time of the contract.

Under Minor's Contracts Act 1987, contracts with minors are voidable at the minor's option, meaning the contract will be binding until such time the minor decides not to. An exception to this rule is where the contract is for necessaries such as food, clothing, medicine and other life essentials. In those cases the contract will be binding.

However, luxury items are not deemed to be necessaries and I suppose an expensive pair of trainers could be classed as a luxury than something that is necessary, though it would depending on your son's existing lifestyle and whether these trainers are necessary for maintaining that lifestyle. If yes, it's deemed to be necessary. There is no specific method to end the contract as long as the minor indicates the contract is cancelled. Interestingly, the minor is not required to return the goods but the retailer could ask a court to order the return of the goods under Section 3(1)(b) of the above Act. Your son would be entitled to a refund but deductions for use can be made and is on the retailer to prove why a deduction should be given. 

In addition to the above, other posters have rightly pointed out to the Consumer Cancellation Regulations as a way to rely on your son's right to cancel. The terms don't appear to comply with the CCRs as they fail to:

(1) State you have a right to cancel a distance contract without giving a reason or incurring liability (Regulation 29)
(2) When the cancellation period begins and ends (Regulation 30)
(3) The effect of the cancellation (Regulation 33) 
(4) Reimbursement of goods (Regulation 34)
(5) How to return the goods (Regulation 35) 

The model cancellation form should also be provided however the retailer can meet this requirement if it complies with the model instructions for cancellation set out in Schedule 3 of the CCRs, which essentially meets all of the above regulations. 

I don't think it's acceptable to have some of these parts in separate sections. In my opinion all of this should be clearly and prominently stated together and it is not sufficient to have individual elements in other areas. It is not for the consumer to decipher what does or does not apply. 

Since the retailer (in my view) failed to meet the requirements of the CCRs, they can't make a deduction for use and a full refund should be given. 

Just to reinforce the point, The European Court of Justice has previously confirmed that it is not sufficient to simply refer to the right to cancel, the retailer must explain the right to cancel, the time limits and conditions in order to meet the CCRs.

In summary, your son has limited options: Sue the retailer for the refund or suck up the loss and move on. 

Okell

I see it now.  Thanks.

I don't think it complies.

For one thing it says you can't return books and DVDs etc which is obviously wrong and misleading - possibly a criminal offence.

@Pippa11 -  don't do anything else at the moment.

I'll post agian later today

[Edit:  the point is that if you play this right you might be able to argue (1) that the cancellation period has been extended by up to a year and (2) that your son is entitled to a full refund regardless of their T&Cs.  Whether Rock + Run will accept that is another matter.  If they don't you can then try a letter before action, but if they remain intransigent you'll have to decide whether it's worth suing them - bearing in mind no court win is ever guaranteed...]

Pippa11

Thank you @Okell

Okell

@Pippa11

You have a very good response there from @A_Geordie

He is correct that everyone has missed the fact that your son is, in the eyes of the law, a minor and therefore cannot be bound by contracts for goods that are not deemed "necessities".

I think it's doubtful that rock climbing boots would be considered "necessities" and therfore your son is not bound by any contract.

There is also the question of contract cancellation which I'll now post about tomorrow

Pippa11

The email I had from them yesterday said they were returning the shoes to my son unless they heard from me by the end of the day. I haven’t responded to them yet so Im not sure whether this has happened. 

Okell

[TLDR  -  go to final 5 points below but understand the argument before those 5 points]

@Pippa11

OK.  You have two ways to approach this:

First, as A_Geordie has suggested.  ie your son is a minor and therefore Rock + Run can't enforce the contract against him.  This means they have to refund him and he has to return the boots to them.

Second you follow the cancellation route.  that works as follows:

Under para 29 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 a consumer has the right to cancel a distance contract within 14 days of delivery of the goods, and the goods must be returned to the retailer within 14 days of the consumer informing the retailer that the contract has been cancelled

The consumer is then entitled to a full refund unless the goods have been “handled” in such a way as to diminish their value – in which case the retailer is entitled to reduce the consumer’s refund to reflect that dimunition in value.  (Para 34)

A consumer is allowed to handle the goods in such a way as “ to establish the nature, characteristics and functioning of the goods” and this is usually described as the sort of handling that might reasonably be allowed in a shop.

So in the case of footwear a consumer is allowed to try them on for size etc and take some steps on a carpeted surface – you know the sort of thing.  If this is all your son has done at home then he’s entitled to a full refund.

It is possible for the retailer to argue that the goods have been diminished to zero in value, but are Rock + Run honestly trying to argue here that your son’s handling of the boots has been such to reduce them to zero value?  I’d suggest that that is rubbish and doesn’t stand up to close scrutiny.

In order to take advantage of all this your son should have clearly informed the retailer within 14 days of receiving the boots that he was “cancelling” the contract.  Sounds like he didn’t do this but you may still have a way out.

Para 31 of the Regulations says that if a retailer does not provide certain information to the consumer regarding their statutory right to cancel a distance contract, then the cancellation period is extended from 14 days to 12 months plus 14 days.  (Yes, it’s increased by a year).

Further, if that information has not been provided to the consumer, then the retailer is not permitted to make any reduction for any dimunition of value, and must pay a full refund (para 34(11)).

The information that Rock + Run is meant to have provided is what is covered in paras 27  -  38 of the regulations, and I think it’s arguable that they haven’t done that.

In particular they try to say that books, CDs and DVDs can’t be returned, and that is obviously wrong and misleading.  The regulations do not say that.

 

So what I would do is:

 

1.      Go back to them and make the argument that your son is a minor and they can’t enforce the contract against him;

2.     If they don’t like that tell them in addition that when he was returning the boots he was obviously exercising his statutory right to cancel a distance contract;

3.     The wear on the boots – if any at all – is consistent with him establishing “the nature, characteristics and functioning of the goods” as per the Regulations and is no more than the sort of handling that might reasonably be allowed in a shop; and

4.     Therefore Rock + Run are legally obliged to pay a full refund.

5.     If they don’t like points 2, 3 and 4, tell them that their T&Cs do not comply with legislation as they do not fully explain a consumer’s statutory right to cancel and that therefore (a) the cancellation period is extended by a year and (b) the law does not permit them to pay anything other than a full refund.

 

Try that on them and come back here with their response.