Refund refused due to excessive wear

DevCoder

Regarding the "minor cannot enter into a contract" is this not countered by Rock Run T&Cs ?

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

Okell

DevCoder said:

Regarding the "minor cannot enter into a contract" is this not countered by Rock Run T&Cs ?

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

But can a minor contract out of being a minor?

Wouldn't that...  sort of defeat the purpose of the law... ???

[Edit:  To clarify -  if the law says a minor doesn't have the capacity to enter into a contract for non-essentials, then they equally can't have the capacity to opt out of that limitation.  Also the references to "province of residence" leads me to suspect that that clause is not intended for UK consumers]

Pippa11

Okell said:

[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.

Thank you so much that is incredibly comprehensive and helpful. I will do exactly. as you have suggested. 

Okell

Pippa11 said:

Okell said:

[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.

Thank you so much that is incredibly comprehensive and helpful. I will do exactly. as you have suggested. 

Do that and good luck.

At the moment you  - or your son - are down £124 with no prospect of any refund unless you can persuade them (a) he's a minor and they can't enforce the contract; and/or (b) that he cancelled the contract in time and his "handling" of the boots was not excessive in the context of the Regulations and he is due a full refund; and/or (c) their T&Cs are not compliant with the regs insofar that they don't adequately explain the consumers right to cancel and therefore (i) the cancellation period is extended by a year and (ii) Rock +Run are not permitted to make any deduction froma full refund for "excessive handling".

Note that none of the above is a surefire winner but you ought to be able to get R + R to back down to at least a partial refund if not a full one.

If they dig their heels in and say "No" it gets more difficult and uncertain

A_Geordie

DevCoder said:

Regarding the "minor cannot enter into a contract" is this not countered by Rock Run T&Cs ?

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

In short, no. Parliament reigns supreme in the hierarchy of laws so legislation will always trump contract terms, which is based on common law (law created through judicial decisions). 

That aside, it is quite telling that at least this section of the T&Cs appear to be a copy and paste job that was intended to be used for another country, perhaps the US or Canada or the similar, but most likely US.

The UK doesn't have 'states' or 'provences' as we have counties. Also, it is common for US companies to refer to their T&Cs as sections rather than clauses which is what we tend to refer to parts of contract terms in the UK. The second paragraph of that section also uses the word 'unauthorized' which is a further indication that these terms have been copied from elsewhere. Section 9 refers to 'llibelous' which is the US english version and the list goes on...

eskbanker

A_Geordie said:
The UK doesn't have 'states' or 'provences' as we have counties.

The UK also has nations, some with individual legal systems, but let's not open that can of worms!

A_Geordie

eskbanker said:

A_Geordie said:
The UK doesn't have 'states' or 'provences' as we have counties.

The UK also has nations, some with individual legal systems, but let's not open that can of worms!

Touché, fair point!

born_again

Given the mention of age of the purchaser.
What was the payment method?

Grumpy_chap

born_again said:

Given the mention of age of the purchaser.
What was the payment method?

Pippa11 said:

Hello, my son (17) 

My son doesn’t have credit cards so paid using his debit card. It’s a huge amount of money for him that he had been saving up  

                                       

Pippa11

born_again said:

Given the mention of age of the purchaser.
What was the payment method?

It was using his debit card (obviously too young to have a credit card)