Personalised goods & cooling off period

[bcalchess]

I have an issue that needs clarification. My wife and I ordered place cards from an online retailer "Little Things Designs" for our wedding. We ordered them in plenty of time (6 weeks before the date) and even contacted the company to ensure that their holidays would not interfere with our order arriving on time. The week of the wedding the goods still had not arrived. We called, mailed etc (no response) The cards finally arrived 4 days after the wedding. Annoyed we sent the cards back at our expense (within 7 days- the cooling off period) with a letter looking for our money back. The company had the neck to say that because the cards were personalised we were not entitled to cooling off period protection and thus no refund.

My gripe is that the goods were not personalised. They were blank cards. We did not have our names, pictures, designs or any personal information added The design and colour chosen were clearly displayed as options with pictures on the companys website.

The lady that contacted us said that these cards were made to our requirements and thus personalised. How can this be. Were we supposed to know from the picture that these cards were not made yet? They looked like a stock item. Surely following this argument every online company could, if an item was out of stock at the time of ordering claim that it was produced specially for the customer and thus personalised.

Does anyone have any Ideas or opinions.

We are pretty miffed

[thekat1979]

She's right about the non return of personalised items, they are exempt from returns. I guess it is down to the retailer how they approach it, but legally they are in the right there.

 

I'm guessing they would need some picture for illustrative purposes, but if the item was said to be personalised, I would assume that they have had to make them up as they go. Lots of places that do things like that make them to order. For instance, with moonpig, they create the cards from a massive printer once you have ordered, even if you haven't changed anything on the card, they would still be produced specifically for you. They wont hold stock generally.

 

As for them arriving late, that is maybe something you should be focusing on and wait for someone else more knowledgeable than me on that. I think that will be the element that gets you a refund.

[legalpickle]

The products are meant to arrive within a reasonable period of time. Unless it clearly stated on the site that the products will arrive within between 6-8 weeks, a reasonable time would definitely be within 28 days.

 

They are right as with regards to the personalization part though.

 

I would right them a harsh letter refusing to pay as the items were received well beyond any reasonable period of time and therefore you do not consider yourself liable for them.

 

If you draft the letter and post a copy here, I'll be happy to try and proof it for you.

[buzby]

Your argument should be solely based on their non delivery in time for the stated purpose - however you would need to back this up with evidence that you provided a date for the items to be delivered by, and any other reminder by you.

 

The fact the goods were delivered late totally wipes out their 'personalisation' claim - as what are you supposed to do... keep them for the next wedding? If they don't willingly refund, you'll need to raise a small claims action, but I don't see this being a problem if you can show that the required date was not met.

[patdavies]

As long as you specified that the cards were for your wedding and provided them with the wedding date (better still have that in writing), then that should easily be sufficient to 'make time of the essence' to the contract.

 

The fact that they then failed to deliver in time constitutes a prima facie breach of contract - meaning you are not liable to pay.

[gyzmo]

The right to cancel given by the DSRs is a "change of mind" policy, which, reasonably, excludes certain items. The exception does NOT, however, apply to cancellations that are the result of breaches of contract, including terms implied by statute. In such cases, your rights are the same as they are if you purchased the item / service in a shop.

 

Secondly, the meaning of "personalised". Basically, it does NOT mean anything "off the shelf". So picking on of 10 designs available is not personalised. But even if they were, see above.

 

Thirdly, is what Buzby says. So you have three complaints against them.

 

1. They did not supply personalised items

2. They did not comply with the DSRs, and until they do, the right of cancellation does not expire as normal

3. They have no right to refuse the refund anyway due to 2.

 

I am still working on my guide to DSRs. I can't wait to get it finished because all the "official" advice I have seen so far just makes the issue so vey much complicated than need be.

[MrShed]

Gyzmo, what is the situation with "produced to order" goods? Out of interest - as that to me is what this is?

[legalpickle]

Gyzmo, what is the situation with "produced to order" goods? Out of interest - as that to me is what this is?

Produced to order goods are goods that are personalized to the customer, for example an engraving on a watch (the watch itself would not be considered personalized till the engraving had taken place) or wedding invitations.

 

gyzmo is right here. Where picking out options for cards - and no text, as text would be personalizing - that isn't personalizing because the retailer can sell them to other people. The definition of personalization is turning a product that would be usable by most people to a product that would only be usable by the buyer, or making a product or service only usable for the buyer (for example: mobile phone unlocking - the code is only valid for the serial number (IMEI) of the phone that is unlocked).

 

The DSR's don't apply to customized/personalized goods. However, goods must be provided within a reasonable period of time, and this is basic contract law. If you specify a time within which the goods are needed and the seller agrees to that, then the fact that they are not received by that date is a breach of contract, hence you are entitled to a full refund.

[gyzmo]

Again, it depends on the exact nature. If you have, for example, "to my squiggledums on your 98th birthday, love from your little possums and for good effect happy Valentines Day" then that is obviously personalised (apologies for the extreme nature given, but it does exemplify the point).

 

But what of, say, a vase that has one of 10 phrases you can selected to be etched into it? That is not personalised.

 

The basis of whether it is personalised is, I believe this:

 

Can you select the item from a catalogue etc or point to it or choose from a list of options? If the answer is YES, then it is not personalised.

 

In the OP's case, if she has selected a card to be in a colour out of 10 different colours available, that is not personalised. It is merely selecting an option (much like having a car with optional air conditioning).

 

If indeed the OP's cards had the words requested in it (such as "Jack and Jill invite the Toxteth Massive Crew to their wedding at the Legs of Man - reply or else. Hugs, J&J") (OP - I'm sorry - I'm not having a jab!) then it would be personalised.

 

If the words said purely "You are invited to the wedding of [blank space for name] at [venue] on [date]" then I would argue that they are not personalised.

 

Does that explain? I am slightly tipsy so not at my best....

[MrShed]

 

 

Does that explain? I am slightly tipsy so not at my best....

 

Thats when you should be at your best!

[gyzmo]

Lol! But I am afraid I have had too much slighty tipsy is a euphanism for totally rat assed (joint birthday - mine a couple of weeks ago and my dads in a few days! (it started off with champagne brekkies this morning....)

 

I will check what I said tomorrow in the cold horrid light of sobriety and attempt a better explanation if necessary!

[MrShed]

Its fine gyzmo - it makes perfect sense (well between you and LP anyway!! )

[gyzmo]

Sure it does!

 

Oh I'm p***ed and going to bed! Mr Shed seems to be stalking me between two different posts!

[gyzmo]

Oh god - I've got a driving lesson in 10 hours!

[legalpickle]

Again, it depends on the exact nature. If you have, for example, "to my squiggledums on your 98th birthday, love from your little possums and for good effect happy Valentines Day" then that is obviously personalised (apologies for the extreme nature given, but it does exemplify the point).

 

But what of, say, a vase that has one of 10 phrases you can selected to be etched into it? That is not personalised.

 

The basis of whether it is personalised is, I believe this:

 

Can you select the item from a catalogue etc or point to it or choose from a list of options? If the answer is YES, then it is not personalised.

 

In the OP's case, if she has selected a card to be in a colour out of 10 different colours available, that is not personalised. It is merely selecting an option (much like having a car with optional air conditioning).

 

If indeed the OP's cards had the words requested in it (such as "Jack and Jill invite the Toxteth Massive Crew to their wedding at the Legs of Man - reply or else. Hugs, J&J") (OP - I'm sorry - I'm not having a jab!) then it would be personalised.

 

If the words said purely "You are invited to the wedding of [blank space for name] at [venue] on [date]" then I would argue that they are not personalised.

 

Does that explain? I am slightly tipsy so not at my best....

I couldn't have put it better!

[thekat1979]

Just to add something else to this...

 

This statement:

 

If the words said purely "You are invited to the wedding of [blank space for name] at [venue] on [date]" then I would argue that they are not personalised.

 

is possibly a little simplistic. To an extent it COULD be affected by the production process. If the item was advertised as 'personalised' but the buyer chose to simply have blank spaces, chances are that the cards themselves are actually printed to order rather than printing onto pre-done blank box versions. It would be far too fiddly to make sure the allignments etc were in place. I had a stab at trying a greeting card thing and the cards were printed as and when rather than carrying a lot of stock. If the items are advertised as 'personalised' then very few people would want to have the 'blank' versions (you could go to a high street and get them for a fraction of the price if you just wanted to fill in blanks).

 

I do agree that the fact the items were delivered late breaches any contract etc, and that a refund is very much needed. However, chances are that the seller cannot re-sell the 'blank' versions as nobody else is likely to want blank versions.

[legalpickle]

Just to add something else to this...

 

This statement:

Quote:

If the words said purely "You are invited to the wedding of [blank space for name] at [venue] on [date]" then I would argue that they are not personalised.

is possibly a little simplistic. To an extent it COULD be affected by the production process. If the item was advertised as 'personalised' but the buyer chose to simply have blank spaces, chances are that the cards themselves are actually printed to order rather than printing onto pre-done blank box versions. It would be far too fiddly to make sure the allignments etc were in place. I had a stab at trying a greeting card thing and the cards were printed as and when rather than carrying a lot of stock. If the items are advertised as 'personalised' then very few people would want to have the 'blank' versions (you could go to a high street and get them for a fraction of the price if you just wanted to fill in blanks).

Technically you're right, but that would be if somebody deliberately asked for it to have that written with the blanks and as you say:

(you could go to a high street and get them for a fraction of the price if you just wanted to fill in blanks)

So, I very much doubt anybody in their right mind would do something like that unless they were ordering them in bulk to make a business out of it, in which case the price would be much cheaper.

 

However, I think we've clarified the point sufficiently and as you correctly write:

I do agree that the fact the items were delivered late breaches any contract etc, and that a refund is very much needed.

 

However I disagree, in this event, with:

However, chances are that the seller cannot re-sell the 'blank' versions as nobody else is likely to want blank versions.

I disagree with this statement for two reasons;

1. The OP did want the blank versions, otherwise the OP wouldn't have ordered them, and I'm sure somebody else might want the cards, if they were nice enough and could have anything written in them.

2. The seller could always put the text in those cards. All that's been put on them is the design, so somebody else who orders that design with text could have only the text put on the cards, instead of having the designs re-printed.

 

I would welcome the OP's return so that we can hear how the OP is getting along with complaining to the company. I am happy to help with preparing and proofing a letter to the company responsible demanding a full refund [and the consequential loss of returning the cards at the OP's cost] and if necessary assisting the OP in preparing court proceedings.

 

I would also be interested in knowing which company is responsible for this breach of contract - company name would be nice [though not website link as this would be a commercial link and against CAG rules].

[gyzmo]

The ability to resell an item is irrelevant to returns. The regulations do not mention anything about being resales, and the OFT's guidance specifically states that it is not a valid excuse for refusing to accept a return.

 

The reason for the excluded items (newspapers, perishables etc) is due to the nature of the items. It would be perfectly ridiculous to allow a cancellation on lottery tickets for example, seeing as any ticket that does not win would be sent back for a refund. Basically, the items excluded can be said to fulfil their own purpose. A newspaper, for example, will have fulfilled its purpose once read. This differs to, e.g, clothing which though it may serve it's purpose once worn, it does not become useless in that it can still be worn numerous times. Of course, you could read a newspaper over and over, but that is getting silly.

 

**addition**

 

Just to add, refusing returns for hygiene reasons, on items such as underwear, earrings etc is also prohibited - see above. A company can apparently put in a requirement of "reasonable care" which, if not met, can lead to a lawful refusal to accept the goods back. I'm still uncomfy with this and looking into it further. Once I get my guide going, I should hopefully have that info.

Edited March 2, 2009 by gyzmo
additional

[MrShed]

Sober now gizmo?

[gyzmo]

lol! Yep! Showered, coffeed, fed, paracetamolled. I'm good!

[legalpickle]

The ability to resell an item is irrelevant to returns. The regulations do not mention anything about being resales, and the OFT's guidance specifically states that it is not a valid excuse for refusing to accept a return.

 

The reason for the excluded items (newspapers, perishables etc) is due to the nature of the items. It would be perfectly ridiculous to allow a cancellation on lottery tickets for example, seeing as any ticket that does not win would be sent back for a refund. Basically, the items excluded can be said to fulfil their own purpose. A newspaper, for example, will have fulfilled its purpose once read. This differs to, e.g, clothing which though it may serve it's purpose once worn, it does not become useless in that it can still be worn numerous times. Of course, you could read a newspaper over and over, but that is getting silly.

Note: I was only answering the point of 'thekat1979'. I did not say it was relevant.

 

Sober now gizmo?

lol! Yep! Showered, coffeed, fed, paracetamolled. I'm good!

Not sure whether I prefer you sober or like you were last night! Rather enjoyed your posts last night!

[thekat1979]

It will very much depend on the production process as to whether those items are able to be re-sold by the seller. It may not be possible to just 'add on' the required text, dependent upon their way of producing the cards. I do think I'm playing a bit of devil's advocate there though!

 

My main point was purely that in those contexts, chances are they are printed to order, not stock held.

 

Doesn't excuse the rest of what happened in the slightest. Definitely get money back.

[Its WAR]

Your cause of action is that the goods arrived late. Their defence will be that the goods did not arrive late and even if they did arrive late, that doesent matter because the goods were personalised. They may have two or three more reasons why they can defend.

 

I believe they will fail at the first step. But, you will still need to argue the second (third, fourth, etc) step (if they use it as part of their defence). So all the points are important.

 

They will fail though on breach of contract for late delivery.

 

I lost a case once where I sold an item from my shop on Christmas Eve. Customer said his wife might want the other colour which was not in stock. I said she could change it after Christmas, it would take about two weeks but I would not refund. He agreed and bought the item. After Christmas, he came back wanting a refund but eventually agreeing the exchange. I said it would take two weeks from 3rd Jan (I wouldnt be able to find out for sure until the manufacturers got back). That meant 3 weeks overall. After two weeks he issued the summons for a refund.

 

The judge said that even though the contract was not specified that time was of the essence, he nevertheless introduced it. The item was clearly a Christmas present, and three weeks late was too late. Even though I had no duty to refund or even exchange the goods, apart from the fact that I introduced the exchange as a choice to the buyer. Refund was never a choice. I still lost and customer got his refund. I had to keep the item that was made to order in his preferred colour.

[gyzmo]

That is the risk that is run. The DSRs are very specific. If the seller does not comply fully with them, the contract can be rescinded.