Refund refused due to excessive wear

Okell

Pippa11 said:

I’m still getting nowhere. I emailed them setting out everything I had been advised to and finished with asking them to let me know about their complaint procedures (as there’s nothing in their website) and received this: 

“Your complaint has been received and forwarded to senior management, who have been made aware of this. And are supporting our conclusions.

My colleague has explained and refuted the points you have raised. And nothing has changed regarding those issues as far as we are concerned.”

so I guess a letter and then I need to decide whether to take it to court. I am not someone who likes to admit defeat when I feel an injustice has been done! 

Hi there  -  DON'T PANIC!!!

Either R+R are correct and your son has a pair of rock climbing shoes that he doesn't want and nothing you do now will change that, or...

R+R's T&Cs do not comply with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and he still has up to a year to cancel the contract and he's also entiltled to a full refund.

Wait and see what consensus - if any - emerges.

I'm sure you'll be aware that there is a difference of opinion as to whether you have any argument or not...

A_Geordie

Okell said:

(1)   Regarding the minors point I have little to say.  @A_Geordie first raised that issue, not me.

When another poster pointed out that R+R's T&Cs attempt to "evade liability" for contracting with minors, I think @A_Geodie pointed out that that couldn't work.

If the law prevents the OP's son from contracting as a minor, it also prevents him from "contracting out" of that protection - otherwise what is the point of that protection?  It's not a Catch 22 - it's simply that a minor cannot be bound by certain types of contract

The law does not prevent a minor from contracting with a trader, rather it is intended to prevent the trader from enforcing the contract because minors are not typically deemed to have the capacity to contract for most things. Anyway, see Section 3 of the Minor's Act below that explains the position.

Restitution

(1) Where—

(a) a person (“the plaintiff”) has after the commencement of this Act entered into a contract with another
(“the defendant”), and

(b) the contract is unenforceable against the defendant (or he repudiates it) because he was a minor when the contract was made, the court may, if it is just and equitable to do so, require the defendant to transfer to the plaintiff any property acquired by the defendant under the contract, or any property representing it.

So, unless the contract can be proven that it is a necessity, there is no recourse for the retailer other than the return of the goods, even if the minor fraudulently misrepresented their age. There is a further exception in that when a minor turns 18, they can ratify the contract without the need for any new consideration and this point has been decided on several cases.

Also I didn't want to go into detail on it but as it's been raised/questioned, the Mental Capacity Act 2005 defines something that is a necessity: 

7. Payment for necessary goods and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2) “Necessary” means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.

And just in case one tries to argue that climbing boots/shoes are a necessity, there is various case law that has decided that a necessity is something that is life's essentials. But as I said before, it could be extended to items that may not be 'essential' for life but should be considered based on the minor's lifestyle. Burden of proof rests with the trader to show the boots were a necessity.

Okell

@Pippa11 -  just to reiterate, if they do send the shoes back keep them - don't even dream of refusing them.

Keep them safe and look after them well...

Undervalued

A_Geordie said:

Okell said:

(1)   Regarding the minors point I have little to say.  @A_Geordie first raised that issue, not me.

When another poster pointed out that R+R's T&Cs attempt to "evade liability" for contracting with minors, I think @A_Geodie pointed out that that couldn't work.

If the law prevents the OP's son from contracting as a minor, it also prevents him from "contracting out" of that protection - otherwise what is the point of that protection?  It's not a Catch 22 - it's simply that a minor cannot be bound by certain types of contract

The law does not prevent a minor from contracting with a trader, rather it is intended to prevent the trader from enforcing the contract because minors are not typically deemed to have the capacity to contract for most things. Anyway, see Section 3 of the Minor's Act below that explains the position.

Restitution

(1) Where—

(a) a person (“the plaintiff”) has after the commencement of this Act entered into a contract with another
(“the defendant”), and

(b) the contract is unenforceable against the defendant (or he repudiates it) because he was a minor when the contract was made, the court may, if it is just and equitable to do so, require the defendant to transfer to the plaintiff any property acquired by the defendant under the contract, or any property representing it.

So, unless the contract can be proven that it is a necessity, there is no recourse for the retailer other than the return of the goods, even if the minor fraudulently misrepresented their age. There is a further exception in that when a minor turns 18, they can ratify the contract without the need for any new consideration and this point has been decided on several cases.

Also I didn't want to go into detail on it but as it's been raised/questioned, the Mental Capacity Act 2005 defines something that is a necessity: 

7. Payment for necessary goods and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2) “Necessary” means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.

And just in case one tries to argue that climbing boots/shoes are a necessity, there is various case law that has decided that a necessity is something that is life's essentials. But as I said before, it could be extended to items that may not be 'essential' for life but should be considered based on the minor's lifestyle. Burden of proof rests with the trader to show the boots were a necessity.

OK but if anything this makes it even more of a catch 22 situation (as mentioned in my previous post).

Realistically, in this particular case, had the retailer made a modest reduction for the marked soles (say 10 to 15%) the OP would have likely accepted and we wouldn't have had this 10 page debate.

Suppose the boots had been subjected to a week's aggressive rock climbing then returned in a heavily used state are you really saying that the retailer couldn't enforce a very significant reduction in refund, as they were bought by a minor, despite the t & c of sale trying to prevent that? And even though the retailer had no means of knowing that? You may be correct, by a very literal interpretation of the relevant laws, but can that possibly be what parliament intended?

As I have mentioned in other threads, in some fields retailers suffer significant problems with expensive goods being "bought" with no intention of keeping them, effectively being hired free of charge by people exploiting the protections of the 2015 act. This situation with minors adds a whole further dimension to the problem.

Crazy situation.....

A_Geordie

Undervalued said:

Suppose the boots had been subjected to a week's aggressive rock climbing then returned in a heavily used state are you really saying that the retailer couldn't enforce a very significant reduction in refund, as they were bought by a minor, despite the t & c of sale trying to prevent that? And even though the retailer had no means of knowing that? You may be correct, by a very literal interpretation of the relevant laws, but can that possibly be what parliament intended?

I did mention in my original post on the Minor's Act that the retailer would be entitled to a deduction for use but what they can't do, is enforce their terms and conditions about how that deduction is calculated, which may be a greater or lesser deduction than a reasonable one. Though if the deduction in the terms is calculated to be more beneficial to the minor, the minor can continue to enforce those terms to their advantage.

If I recall somewhere in the thread that their policy says there will be a deduction for use but the retailer is supposedly claiming that the boots have been used so much that they are no longer in a saleable condition, without evidence or justification. 

I merely pointed out the fact that there is an alternative argument under the Minor's Act given the age of the son although the CCRs is probably still the best route for recovering a full refund because in the CCRs: 

(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.

But

(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.

Paragraph (l) requires the retailer to explain that if a right to cancel exists, then they must state the conditions, time limit and procedures for exercising that right in accordance with the CCRs. 

sheramber

The retailer considers them unsaleable as they do not sell reduced / imperfect stock. 

Undervalued

sheramber said:

The retailer considers them unsaleable as they do not sell reduced / imperfect stock. 

Had I received the boots "new" from this retailer with the level of marks shown in the photo (and assuming they fitted me and were otherwise undamaged) my reaction would be to send them a photo and ask for a modest reduction in price otherwise they would go back. 

It would be interesting to know how often that happens and what response I would have got? I suspect they would have agreed?

born_again

TBH. If retailer sent them out to another person. How many would turn round & say these have been worn. Not thinking that it was just bad printing by manufacture?

A_Geordie

sheramber said:

The retailer considers them unsaleable as they do not sell reduced / imperfect stock. 

The simple answer to that is to not sell online to consumers if they don't want to hand out refunds for used stock. 

Ergates

sheramber said:

The retailer considers them unsaleable as they do not sell reduced / imperfect stock. 

Seems like there is a simple solution to that.