Returning faulty goods - who pays postage?

[dhas]

I bought two scrolling led message boards 7 weeks ago from an online retailer. One of them has just developed a fault and is not working at all.

 

The retailer has agreed to repair or replace the faulty item but is refusing to collect it or reimburse postage costs. This Guardian article leads me to believe that they should pay the costs, but the manager at the retailer disagrees.

 

Who is right and how should I proceed?

 

Many thanks.

[JonCris]

Although they will often deny it they should pay all costs directly & in some cases indirectly associated to the faulty product & that includes postage

[gyzmo]

It's not a case of should - it's more of a must. The distance selling regs specifically state that the seller cannot impose costs for an item being returned in accordance with the regulations. Most companies will send a pre-paid envelope.

 

The following is an extract from teh OFTs guide to businesses on distance selling:

 

Q. What specifically do I have to refund to the consumer if

they cancel?

 

3.48

The DSRs require you to refund any money paid by or on behalf of

 

the consumer in relation to the contract to the person who made the

 

payment. This means the full price of the goods, or deposit or prepayment

made, including the cost of delivery. The essence of

distance selling is that consumers buy from home and receive goods

at home. In these circumstances, almost every case of home

shopping will involve delivery of the goods ordered and so delivery

forms an essential part of the contract.

 

That is to do with cancellation. The next bit is more relevant:

 

Return of goods following cancellation (Regulation 17)

Who pays for returning the goods if the consumer cancels

an order?

 

3.57

 

 

If the goods are faulty or do not comply with the contract, you will

 

have to pay for their return whatever the circumstances.

 

 

After the deadline for cancellation has passed, a consumer

claims that goods are faulty or services do not conform to

the contract. Do I have to refund the consumer’s money?

3.67

 

In general the DSRs do not affect the consumer’s rights under other

 

legislation, for example the Sale of Goods Act 1979 or the Supply

 

of Goods and Services Act 1982. If the goods or services do not

conform to the contract and consumers exercise their rights to reject

them, you will have to refund their money.

3.68

 

 

 

If goods develop a fault within the first six months of being sold,

 

 

the law presumes that the fault was there when you sold the goods –

 

unless you can show otherwise. You should not charge return costs

for goods that have been rejected because they are faulty.

 

The above is from teh OFT guide here http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

 

I would contact the seller again, with this paragraph:

 

I wish to draw your attention to r.14(6) of the Consumer Protection (Distance Selling) Regulations 2000 (SI 2334) Which specifically states that, where goods are returned as a right due to a breach of a term imlpied by statute (specifically s. 14 of the Sale of Goods Act 1979), the rights, given by r. 14(5), of a seller (yourselves) to require the buyer (myself) to bear the cost of a return is disapplied.

 

As such, ther cost of bearing teh retrun lies with yourselves. I therefore epect taht you will fulfill your contractual and statutory obligation to refund mys full costs including postage"

 

 

 

 

 

[gyzmo]

And apologies for the formatting!

[BeauBrummie]

Hi

 

For speed of repair the customer sends back, and retailer refunds the postage back to the customer when it is prooved to be faulty. This is how I have always known it.

 

Beau

[JonCris]

Of course it's case of 'should' We know they must but if the supplier simply refuses to pay PP, as some do, then the owner is between a rock & a hard place

 

If they don't refund the cost my advice report them to TS after the item is repaired

[gyzmo]

I have to disagree with that - it is being held hostage and goes against the exact nature of consumer protection.

[JonCris]

I'm living in the real world

 

The OP wants the item fixed & if they refuse to pay PP it'll do absolutely no good arguing the toss. Argue after it's repaired & if they still refuse to play ball report them to Trading Standards.

 

Antagonise them now & goodness knows what will happen to the item - lost in the post maybe

[gyzmo]

It's still their problem - not the customers. The real world is such a mess becasue we don' live to the ideals that would make it a better place.

 

It could be that the seller is simply unaware of his obligations re postage - not many businesses understand the legislation that applies to them.

 

We should not be bowing to sellers unreasonable requirements just to keep them happy - that only encourages bad practice. If they refuse to refund postage it will mean going to court. If doing that, one might as well get it repaired at a local shop and recover the money back.

 

I have ordered and returned online goods several times and used this policy successfully. And i have continued business with the seller in one case. But where they behave like this, I wouldn't trust them with the goods anyway.

[JonCris]

Principal is all very well but in the OP's case at what cost. If they both refuse to budge then the OP is stuck with it & all for a few quid of postage

 

However after thay have repaired it is another story all together - then make as much of a fuss as you possibly can & before long they'll wish they had paid the postage & plenty more besides

[gyzmo]

Well, its something we will disagree on. I do appreciate the points made but cannot agree. Best leave it for people to decide what hey want to do. We can only give our opinions, help and advice. Whether people choose to take it (whichever one) is down to them.

 

At least its got through that the OP is entitled to not have to bear the cost of posting - something taht many would disagre on anyway!

[JonCris]

Of course it is & I don't disagree in principal but the OP like many others who come here probably wants a practical solution to the immediate problem & now they know the supplier has a legal duty they can act on it later

 

They & the supplier arguing the toss about who's going to pay postage gets them nowhere & sometimes when the issue is about something of such little value it pays to cut straight to the chase

[BeauBrummie]

Dhas,

 

Have you got T&C's from retailer ? if so they should show returns policy. it may even be on their website somewhere.

 

Beau

[gyzmo]

The returns policy is irrelevant. The regulations impose a requirement, and if the stores T&C's do not agree with it, then those particular T&Cs are automatically void.

[JonCris]

Gyzmo is correct

 

If their returns policy does not comply or add to their already statutory obligations it's actually unlawful

[BeauBrummie]

Agreed gyzmo,

 

but if that is where the retailer manager is coming from, he will be just following procedure rightly or wrongly

 

Beau

[gyzmo]

I see what you mean - if its in their own T&Cs then they shuld really know . But where it not there it wouldn't matter anyway. Only wanted to clarify that T&Cs are only valid if they comply with legislative requirements:)

[Conniff]

The thing is the op has had the goods for 7 weeks and the DSR only covers 7 working days, this means that he has accepted the good, so this is contract.

 

Also you quote gyzmo

 

You should not charge return costs

 

It's the word 'should' that would worry me. Should is not the same as 'must', so it looks to me like the seller is given an option.

[gyzmo]

The 7 days in DSR is really a cooling off period, as the buyer only has a chance to check the goods once they have been received - very different to buying in a shop. DSR also lpaces obligations on sellers, which if not met, can extend this coooling off period until they are met.

 

The period referred to however does not apply to where goods are returned becasue of a fault or misdescription etc. That is a different kettle of fish. Have a look at the guide (which is for sellers but I thnk it is better than the one for consumers) which I posted before - itanswers a lot of different situations quite clearly (and is one of the better guides produced by the OFT).

[Karatelofty]

gyzmo, your the best I had to register just to tell you that. I was getting nowhere with a company who sent me a link to their returns policy when they wouldnt payt for the return of a faulty item. I searched the web, found your link to the OFT, replied to them with it and specifically pointed out page 27 which says ...

section 3.57 If the goods are faulty or do not comply with the contract, you will have to pay for their return whatever the circumstances.'

I also told them there policy was illegal

They caved in, told me to ditch the product and they'll send me a new one

Thanks again!

[JakeC2]

Hi everyone,

 

I've had some correspondence with a company about the return of a faulty item, and I'd like your thoughts on it please.

 

1. I bought an item online for £23 and postage was £5. It developed a fault a few weeks later so I emailed them saying I would return it and would like a full refund. It cost £3 to return it.

 

2. The company said they would confirm the fault and offered a replacement or refund.

 

3. I said I would like a full refund (cost of item, shipping and return postage).

 

4. The company confirmed it was faulty, said they were happy to refund, but couldn't refund shipping charges. I pointed out that I was entitled to a refund of the cost of the item plus any shipping charges.

 

5. The company said I was out of the 7 day cooling off period so couldn't get a full refund. They said legally they only have to repair or replace.

 

6. I said the 7 day cooling off period only applies if I cancel the order, in this case the item was faulty so it didn't apply. I included an extract from the Office of Fair Trading website and said again I would like a full refund and postage.

 

7. They replied:

"Thank you for the links but we are well aware of consumer law. To be clear, you have no legal right to ask for a refund of the cost of the product because it is faulty and must give us a reasonable amount of time to repair or replace the product. You agreed to our terms and conditions when placing the order and we have gone out of our way to try and be accommodating by offering you a refund for the product but we seem to be getting nowhere. Since we can’t reach an agreement we must revert back to the letter of the law and will proceed with refunding you the £3 paid to return the faulty product and will dispatch a replacement to you as soon as possible."

 

So finally they acknowledge that I'm owed the return postage, but have gone back on their offer to refund the cost of the item.

 

The questions I have are:

a. For the refund of a faulty item shold I be refunded the original shipping charge?

b. For the refund of a faulty item shold I be refunded the return shipping charge?

 

This company does not show a phone number on their website, I'm sure this could have been sorted very easily over the phone.

 

Thank you for your help!

[perplexity]

The letter of the law that the supplier has in mind would be part 5A of the Sale of Gods Act, according to which a consumer is entitled to the repair or replacement of goods.

 

If your intention is rather to completely reject the goods the relevant section is s.36 of the SOGA according to which a buyer is not so much as obliged to return the rejected goods.

 

While it may then seem that you are out of time with regard to the opportunity to reject, (3) of Article 5 of the relevant EU Directive 199/44/EC is appropriately helpful

 

3. Unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

In view of section 34 of the SOGA according to which

 

Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract

the argument is thus that the effect of the Directive is to reasonably request that the seller allows as much as 6 months to examine the goods.

 

8-)

[Kraken1]

a. For the refund of a faulty item shold I be refunded the original shipping charge?

b. For the refund of a faulty item shold I be refunded the return shipping charge?

 

yes, yes.

 

if you asked for a full refund within a reasonable time. What is a reasonable time is a question of time and depends on the thing. What was it, and how long exactly was 'a few weeks'?

 

 

"Thank you for the links but we are well aware of consumer law. To be clear, you have no legal right to ask for a refund of the cost of the product because it is faulty and must give us a reasonable amount of time to repair or replace the product. You agreed to our terms and conditions when placing the order and we have gone out of our way to try and be accommodating by offering you a refund for the product but we seem to be getting nowhere. Since we can’t reach an agreement we must revert back to the letter of the law and will proceed with refunding you the £3 paid to return the faulty product and will dispatch a replacement to you as soon as possible."

 

They ain't aware of consumer law. This is basic contract stuff. They are also confusing your tier one and tier two rights.

[JakeC2]

Thanks very much Kraken1,

 

The item was a Gro-Clock, which is an electronic clock without numbers to tell young children when to get up. The time period from arrival of the clock to finding and reporting a fault was 3.5 weeks.

 

I have been in touch with the Gro-Clock company and they have confirmed the clock is faulty from what we described and suspect a faulty batch. They were very helpful.

 

How should I reply then?

 

Many thanks,

JakeC2

[Kraken1]

i think you are probably entitled to a full refund.

 

send them this http://www.berr.gov.uk/files/file25486.pdf, draw their attention to pages 11 and 16, and point out that the shipping charges are consequential losses, and that if they don't agree you are happy to ask a court to consider the claim. If they dither, send a letter before claim and then sue.