MSE in court,,,

mdbarber

well well meester,,,i am so surprised that someone has actually managed to come up with a logical well informed alternative opinion on this subject, that was part of the intention of the original post and its a pity i had to go through all this abuse to get some of that.
As you seem to know the law is often complex but also often simple and as stated alternative strategies can be integrated to form an iron clad assault.
Many thanks for your input and i'm very happy that at least one person on here can speak with some authority on behalf of the consumers.
Alas jeannie there is only one of me but am in terrible condition due to a dental abscess so clear typing is not a huge priority when the pain killers wear low

meester

Bamber19 wrote: »

Havign never bought from them I can't tell you what is or isn't displayed at the point of purchase so what they have or haven't told the OP is completely unknown to me, but what I would say is that they are not denying the OP their right to return the item under DSR, in fact, they are allowing the return, just saying that they are not going to pay for it, unless proven to be faulty.

Please read my earlier post:

http://forums.moneysavingexpert.com/showpost.html?p=11029315&postcount=63

Their terms:

http://www.incarexpress.co.uk/page.php?content=terms

do NOT comply with the DSR

Not sure the DSR requires the seller to pay for the return of the item, I'll ahve a look but what comes to mind is that they must meet the cost of returning an item that is sent as a substitute (if it isn't wanted) not sure about the scenario where the correct item is sent whether they or the consumer meets the cost of the return, but I will check (out of mere curiosity)

Edit: Just checked, the regs say that the cost of returning an item is incurred by the buyer where this is included in the terms, as I said above,

But that doesn't apply here, because they failed to inform the consumer of their DSR rights.

"In good time prior to the conclusion of the contract the supplier shall provide to the consumer the following information the existence of a right of cancellation "

They clearly have not done that, and nor have they actually said in the terms that the buyer will bear the cost.

There is no information so the seller is obligated to pay the cost.

mute_posting

meester wrote: »

"In good time prior to the conclusion of the contract the supplier shall provide to the consumer the following information the existence of a right of cancellation "

They clearly have not done that, and nor have they actually said in the terms that the buyer will bear the cost.

There is no information so the seller is obligated to pay the cost.

Could that inormation not be provided in the confirmation email?

I'm sure I've often had DSR rights laid out in such emails which come "in good time" prior to the goods being shipped (which is often the "conclusion" of the contract)

Just a different angle to look from...

MP

Bamber19

mute_posting wrote: »

Could that inormation not be provided in the confirmation email?

That's what I was getting at, what's in their terms on their site and what's in their terms when it actually comes to forming a contract and intending to purchase from them could be two very different things. Without buying from them I don't know what terms are included at that stage.

One can't assume they haven't informed the OP of his/her rights just because they don't appear in the terms on the site. I have in the past found a different set of more detailed terms are presented at a confirmation stage, and these would be the terms that are actually a part of the contract.

uktim29

Bamber19 wrote: »

One can't assume they haven't informed the OP of his/her rights just because they don't appear in the terms on the site. I have in the past found a different set of more detailed terms are presented at a confirmation stage, and these would be the terms that are actually a part of the contract.

Exactly. The op saying he couldn't be bothered to read them suggests he was aware of them.

Otherwise, how you not be bothered to read something that you didn't know existed?

Iamthesmartestmanalive

meester wrote: »

Please read my earlier post:

http://forums.moneysavingexpert.com/showpost.html?p=11029315&postcount=63

Their terms:

http://www.incarexpress.co.uk/page.php?content=terms

do NOT comply with the DSR



But that doesn't apply here, because they failed to inform the consumer of their DSR rights.

"In good time prior to the conclusion of the contract the supplier shall provide to the consumer the following information the existence of a right of cancellation "

They clearly have not done that, and nor have they actually said in the terms that the buyer will bear the cost.

There is no information so the seller is obligated to pay the cost.

It states on their terms under delivery that no liability will be taken for delivery except those covered under the DSR

The op is on to a loser as he is just citiing a load of pish and expects a judge to recreate the law for him

It should also be noted he wasnt returning it under DSR but the warranty, you may have an argument although I doubt it but the OP cant change the reason for him wanting to return it now so he can argue that in court

meester

Iamthesmartestmanalive wrote: »

It states on their terms under delivery that no liability will be taken for delivery except those covered under the DSR

Yes, it does say that, but what it does not do is inform the buyer of his legal right to cancel. Simple requirement, quite clearly not fulfilled. Just because the phrase 'Distance Selling Regulations' appears in their terms, doesn't mean that they have fulfilled the law.

It should also be noted he wasnt returning it under DSR but the warranty, you may have an argument although I doubt it but the OP cant change the reason for him wanting to return it now so he can argue that in court

He doesn't have to say 'I'm returning this under the Distance Selling Regulations'. I don't know why so many people in this thread are trying to construe the law very narrowly in favour of the retailer.

Here's what the law says:

For the purposes of these Regulations, a notice of cancellation is a notice in writing or in another durable medium available and accessible to the supplier (or to the other person to whom it is given) which, however expressed, indicates the intention of the consumer to cancel the contract.

So providing he emailed, faxed, or wrote, within three months and seven working days, to say he did not want the goods, he has rejected the goods within the meaning the DSR.

Bamber19

meester wrote: »

I don't know why so many people in this thread are trying to construe the law very narrowly in favour of the retailer.

I'm not sure many were, the OP was arguing from the point of the SOGA and other posters were quite rightly telling him/her that the right they thought they had under the SOGA was not contained within the SOGA. I now think with the help of your post (and dependant on what is actually communicated to a buyer at the point of purchase) they will have a case, but not if they merely go in shouting about the SOGA. As informal as the court is, they will not make her case for her, if she fails to bring up the DSR the court will not say "You've forgotten to bring up that, that could help you out" so again, but for your informative post the OP would have looked stupid. I still have my suspicion that she/he's decided what she's going to say already and will go in raving about the SOGA though.

arabianights

Why won't OP say where the court case is happening? Could be a good laught

mdbarber

arabianights wrote: »

Why won't OP say where the court case is happening? Could be a good laught

for the simple reason i don't want a surge of people claiming they will turn up and scaring off the defendant, i want my day in court!

@meester can't find any reference (and have spoke to an old friend who retired from teaching law 15yrs ago) the dsr seems to be very vague about liability for cost of return in cases where the dsr notification has been breeched?? can u point me to anything usefull
As for my actual claim will you please give your opinion on this excerpt from the UCA

5“Guarantee” of consumer goods

(1)In the case of goods of a type ordinarily supplied for private use or consumption, where loss or damage—
(a)arises from the goods proving defective while in consumer use; and
(b)results from the negligence of a person concerned in the manufacture or distribution of the goods,
liability for the loss or damage cannot be excluded or restricted by reference to any contract term or notice contained in or operating by reference to a guarantee of the goods.
(2)For these purposes—
(a)goods are to be regarded as “in consumer use” when a person is using them, or has them in his possession for use, otherwise than exclusively for the purposes of a business; and
(b)anything in writing is a guarantee if it contains or purports to contain some promise or assurance (however worded or presented) that defects will be made good by complete or partial replacement, or by repair, monetary compensation or otherwise.
(3)This section does not apply as between the parties to a contract under or in pursuance of which possession or ownership of the goods passed.