Christmas Gifts

[bandonbhoy]

I used the advert in Scotsman newspaper to order a Christmas hamper at the beginnig of December. It advertises 'No Packaging; No, Postage; No worries'.

At the bottom of the advert it said ' Oders for Christmas delivery close on Friday 4th December 209 at 4pm'

My order was placed on 1st December. This was to be the first Scottish Christmas prersent for my new daughter in law on her first Christmas married to a scotsman. When I phoned my son on the evening of 23rd December, he had not received any present, so just after 9am I phoned the Scotsman and the girl there looked into it and phoned back to say the company delivering the hampers was Australian and they were not answering their phone. I pointed out that they were in advance of us in time and hence they would be closed for their hols. She said if it wasn't delivered on Christams day I was to phone them. I did so on 28th December and was told the girl in charge wasn't in the office and she would send me email about the non delivery. My son had received a postcard on 24th saying parcel would be delivered within six days. Even that deadline wasn't kept and hence my daughter in law who works in hospital in Nashville was going off todo voluntary work in hospital in Kenya for three months, missed the eventual delivery of this present.

I contacted the scotsman and today received reply saying they had issues with their deliveries due to bad weather. My view is that I should be given full refund of my monies as they failed to deliver present and missed Christams by nealy two weeks and in fact caused me considerable worries, not to say the constant telephoning to ascertain where the package was.

The package conatined goods manufactured in Canada and delivered by and Australian company. The goods were described as 'US Scottish Luxury' . The ingredients were all scottish known brands like; Baxters; Robertsons; Walkers.

 

Can anyone offer advice?

[Conniff]

You sound just like my misses, going all around the houses to tell a story.

 

So to date have your received the parcel or not?

[buzby]

If you are hoping that because the items weren't delivered FOR Xmas, you shouldn;t have to pay for them, I don;t see that working.

 

The deciding factor is have the goods been delivered? If so, then you have no right of refund. If you haven't (even though there was an abortive attempt) then the transaction has not been concluded, and you are entitled to a refund... but not otherwise.

[Bookworm]

I disagree.

 

The fact they were advertised as CHRISTMAS hampers (of course, I don't know what the ad said, but I am going to venture that it would have said something on the lines of "for a special treat this xmas etc...) means that there is an implied term in the contract that the goods will be delivered for xmas. If they are not, then the company is in breach of contract and a right of redress arises.

 

The question is what redress? If the goods have now been delivered, then what price on disappointment? If you had to rush out and buy something else instead, then you'd have recourse to reclaim the cost of that. So it all depends on inidividual circumstances.

 

If the goods still haven't been received however, you would be quite within your rights to cancel the order and get a full refund. In fact, even if the goods have now been received, under the DSR, you have a short period of time to examine the goods and reject them if you are not satisfied, so a bit more relevant info would help.

[Joijo]

I disagree too. In brandonbhoy original message it states

At the bottom of the advert it said ' Oders for Christmas delivery close on Friday 4th December 209 at 4pm'

now to me that would mean that the hamper should have been delivered prior to Christmas.

 

I would not expent a full refund but an offer of something. Even a little refund would be nice. It may not be there fault that they had problems delivering the hampers but im sure they would be claiming from the delivery people in some way :?

[buzby]

Disagree away - however the promise of Christmas delivery was an aspiration, not guaranteed. If the purchaser did not make clear that 'time is of the essence' to the delivery process, then they have no grounds to complain if the goods have been recieved.

 

DSR does not apply either, so if the goods are not where they should be - seeking any further discount or waiver would be for goodwill purposes only, not a right.

[mightymouse_69]

Would be useful to see the full advert - which may be impossible unless the OP has a copy still?

 

I think this line suggests that the goods were delivered, albeit late:

 

... missed the eventual delivery of this present.

[buzby]

Which would be ideal - no goods = no charge (or refund!)

[kiptower]

people may have missed this quote > "who works in hospital in Nashville "

 

so the delivery was to America

[Joijo]

Ah very true kiptower.

 

Buzby i was not having a go at you but that is my personal feeling. I would be asking as a goodwill not anything else

[Bookworm]

Disagree away - however the promise of Christmas delivery was an aspiration, not guaranteed. If the purchaser did not make clear that 'time is of the essence' to the delivery process, then they have no grounds to complain if the goods have been recieved.

Wrong. Read the CPUTS, in particular the part about the seller acting in a manner which would influence the buyers' choice.

DSR does not apply either, so if the goods are not where they should be - seeking any further discount or waiver would be for goodwill purposes only, not a right.

Go on, explain why the DSR wouldn't apply? I'm intrigued (and don't believe you).

[bandonbhoy]

Goods were delivered and in phone call when placing order was told they would be deliverd before Christmas. If I had been told they would be delivered in a Christmas period over several weeks I would not have placed the order. The newspaper employee confirmed that was in sufficient time for the order to be delivered.

[Bookworm]

people may have missed this quote > "who works in hospital in Nashville "

 

so the delivery was to America

No, I had seen it, but read it as the person was in the UK and them went back to the US, although your interpretation is more than likely better than mine!

[kiptower]

bandonbhoy, he help the small confusion was the good ordered to be delivered to Nashville USA or the UK ,

 

if it was the UK then the DSR would apply, further "A Christmas Hamper would by the nature of the name would need to be delivered before Xmas day NOT after " unless they clearly stated delivery could be beyond the 25th od dec

 

which Bookie has clearly pointed out the DSR applies in the UK

[bandonbhoy]

Matter resolved as per the attached response.

 

Many of the 'advisors' are too far up the spines of their importance, that they fail to appreciate the best way forward.

 

Dr xxxx,

 

Thank you for your reply. I fully appreciate your frustration at the lack of pre-Christmas delivery and disappointment at the hamper not being received. To this end I think it is completely fair to offer you a refund which has now been processed and will be credited to the card by which you made the payment.

I apologise for this issue and I can assure you the general points raised will be picked up with our supplier.

Kind Regards,

[kiptower]

at least you got a refund , just a pity the xmas was spoilt

[buzby]

Firstly DSR does not apply to deliveries made outwith the EU.

 

As for the OPs misunderstanding of the advice provided - which remains crrect - is that the supplier can always make a goodwill gesture and head off any dissatisfaction. Faced with no resolution, advice given is based on the real-world chance of seeking a resolution independently, which would be slim to non existant if the goods had been delivered.

[bandonbhoy]

Delivery Information

 

Deliveries

All prices include all delivery costs including taxes

• We aim to deliver all gifts (all year round) within 5 working days of receipt of order
  
• All prices quoted include "Standard delivery" and are made during working hours (between Monday and Friday, excluding Public Holidays), therefore please consider sending to a work address if applicable
  
• Delivery is not available to a PO Box
  
• Orders will not be despatched until payment is received in full
  
• We will not be liable for any re-delivery costs if incorrect address information is supplied. Re-delivery will incur a redelivery cost equal to 25% of the total hamper price and will need to be accepted and paid for prior to any redelivery.
  
• We will not accept liability for any loss or damage arising from items lost, stolen or damaged after delivery has taken place to an incorrect address.
  
• In the event of non-delivery or damage caused by our error, we will make a replacement delivery as soon as possible after receiving advice of the problem or provide a full refund to the sender.
  

Christmas Deliveries and Orders

Orders for pre-Christmas delivery to Australia, New Zealand, Canada and USA must be received prior to Friday 7th December 2009. Orders to the U.K and other countries can be received until Wednesday 14th December 2009.

All "Christmas" orders are delivered between 5th - 24th December.

[Bookworm]

So not just "implied" as I thought, but integral part of the contract. Under the circumstances, a full refund is appropriate compensation and I am glad they did so without fuss.

 

My mistake re the DSR, I thought the goods had been delivered in the UK.

 

Anyway, glad to see you got appropriate remedy without a fight.

[Kraken1]

I'm glad it has been resolved, but the OP was not entitled to a full refund in law.

 

On this particular issue I'll side with the buzby side of the bookworm/buzby debate. Which is only fair as I think I went the other way last time...

 

It seems that it was true that time was of the essence of this contract, and this would entitle the OP to reject the contract, and claim any losses incurred in ensuring the contract was performed on time. However, the right to reject only subsists until delivery, in this instance. Once the OP, or his intended recipient, accepts delivery then the breach is waived and the contract affirmed. To reject and claim the full remedy he would needed to have refused the delivery.

[Bookworm]

I never said he was entitled to a full refund. :-? I said that he would be entitled to remedy, and quantifying it would have come down to many elements. I also said that under the circumstances, full refund was appropriate, but no, they didn't have to refund in full. they could have offered a partial one instead, but they couldn't expect to get away with no compensation whatsoever.

 

I also have to point out that the right to reject does NOT stop at delivery. In the case of DSR, it's 7 working days from the day after the contract is fulfilled (so effectively 10 days), in the case of rejection under SOGA, it is a "reasonable" amount of time, which varies depending on the goods and the circumstances, which is perfectly logical.

 

I don't know where you get the idea about rejction and delivery, but it is completely incorrect. Even signing for the goods saying you have inspected and accepted them has no bearing in law and isn't binding on the consumer.

[Kraken1]

I'm sorry, I disagree. You are conflating statutory remedies with general contract provisions and applying general consumer issues to this specific circumstance, which although normally correct, in this instance, and where the claim is founded on the breach of a time is of the essence clause, it isn't. Rejection under SOGA might not stop at delivery, the buyer is entitled to a reasonable time to inspect the goods.

 

Where the reason for rejection is because of a breach of a time is of the essence clause, then accepting delivery will extinguish this remedy. Essence clauses are quite draconian, they entitle the buyer to reject outright, there are no intermediary steps save for practical purposes as point of negotiation - I won't reject completely if you do xyz...

 

Any other claim will depend on the losses suffered. In this type of case I doubt there are any losses to be recovered. Where is the loss?

 

I doubt a partial refund would be applicable. This is a right under s48 of the SOGA which is relevant to faulty, mis-described goods etc, the goods not conforming with the contract. Time is of the essence clauses would fall outside of this, indeed the SOGA expressly excludes such terms unless they are expressly stated.

 

Under the circumstances, a full refund is appropriate compensation

 

I appreciate I may has misread, however it might be advisable to clarify where advice is given based on the legal rights of the OP, and where advice is being given as to what a good company should do in the circumstances. the use of the phrase compensation, and your expertise is consumer law, led me to believe that you were stating a legal right, not simply giving a moral opinion (I didn't think that you'd mix terminology). Apologies for the error.

[Bookworm]

I accept what you are saying if the breach occurs because of the time of the essence and that it is the reason used for rejecting is one so wishes, but the right to reject goods which are being delivered for whatever reason is absolute (not talking of personalised goods here etc..).

 

There is provision for compensation for other factors than loss, inconvenience, embarrassment etc... Which is why I referred to "what price do you put on that?" in my first post, and also stated that quantifying would be difficuly for that reason.

 

That is the reason I didn't say "IMO" in the part you quoted above, simply because I had already made it quite clear in my original post what my opinion from a legal point of view was, furthermore as OP had received remedy by the time I posted the above comment, it was just that: a comment and nothing else. I didn't elaborate for a simple reason: To my mind, it is "appropriate" that they should refund in full because of the monumental way in which they screwed up. However, a lot of people would praise them for doing such a good thing, when to me, it is the very least they could do... Unfortunately in this day and age, customer service has gone down so far down the pan that when a company does the RIGHT thing, we are so shocked that we treat their behaviour as going the extra mile, when it was nothing of the sort.

 

Anyway, water under the bridge now, a satisfactory outcome for the customer and that's the main thing. ;-)

[Kraken1]

again, I agree generally with what you are saying, but not with reference to the op's question. for clarity I think it is important to confine responses to the problem stated, rather than talk in generalities which could confuse the issue.

 

the right to reject goods which are being delivered for whatever reason is absolute

 

Only if the contract is concluded at a distance, and providing, as you pointed it, it is not an exempted contract from the DSRs. You can order stuff that is to be delivered that is not covered by the DSRs. Delivery is not a certainty for the DSRs to apply.

 

There is provision for compensation for other factors than loss, inconvenience, embarrassment etc... Which is why I referred to "what price do you put on that?" in my first post, and also stated that quantifying would be difficuly for that reason.

 

Again, yes, for eg see watts v morrow, ruxley etc, but in this instance it is extremely unlikely that any non-pecuniary losses would be considered. the issue is just not serious enough.