Waiving Consumer Rights

[Lynnzer]

I have a sale page on my website selling ladies high end fashions. The sale page is well used by people from all around the world but we do get a lot of garments returned due to fit not being exact, style and colour preferences etc.

We make it well known on our terms and conditions that we are happy to refund the cost of the garment purchase but for reasons of economy are unable to refund cost of postal charges. Simply we couldn't do this at all as the postal costs would make it far too expensive.

I have been told this is illegal and any return would require the cost of post to be included too.

The Regulations seem confusing on this issue. As a purchase has to be despatched as early as possible, generally the day a sale is taken, and certainly within the normal 7 day cooling off period, does this waive the rights under the regulations?

I'm not trying to screw the customer at all and in fact all of them I've spoken to agree that I just couldn't operate the sale page (which is for their own benefit) if I had to swallow the postal costs.

Is it possible for the consumer to agree to waive their rights to this absurd rule at, or before time of purchase?

Any other ideas would be welcome. Maybe, for instance, the postal costs could be made into a non refundable gift or some such thing which falls outside the scope of the DSR's.

I just know that the many satisfied customers who we've served over the years would not have had the opportunity to buy from our website if we had to comply strictly with this regulation.

[kiptower]

as a retailer you cannot remove any of the customers rights under DSR or SOGA sorry to say,

 

nor can you as UK seller make it part of your T&C that any of their rights are excluded by trading with you,

 

companies have to vector such costs into their final selling cost , such as if 2 out of ten items are returned @ a cost of £8 intotal on average then your final price per item would be plus 80p to cover such events etc

 

this applies to sales done withing the uk eg the customer is also in the uk , you could phone your local trading standards and ask what applies abroad etc

Edited July 19, 2010 by kiptower

[Lynnzer]

as a retailer you cannot remove any of the customers rights under DSR or SOGA sorry to say,

 

nor can you as UK seller make it part of your T&C that any of their rights are excluded by trading with you,

 

companies have to vector such costs into their final selling cost , such as if 2 out of ten items are returned @ a cost of £8 intotal on average then your final price per item would be plus 80p to cover such events etc

 

this applies to sales done withing the uk eg the customer is also in the uk , you could phone your local trading standards and ask what applies abroad etc

Thanks. The problem is that by so doing, ie increasing the cost to cover such events, would put a difference between the garments in the shop and the same one on the website which is also illegal.

Some outfits go out and are kept first time but there are others that may go out several times at a cost of £12.50 a time. This makes running such a facility on the website pretty useless and to be honest would put it as a loss making operation. I can see by the recent activity on the sales sheet that we would be a fair bit out of pocket just for the last 2 months to the actual sales satisfactorily concluded.

By a customer agreeing an immediate delivery rather than one made after the 7 day cooling off period, would this waive the rights of that person, obviously by prior agreement?

[kiptower]

no law says your web prices have to be the same as the shop , dont know who told you that

 

but you cannot ask them to give up their legal rights as a T&C of the sale, the fines you could be landed with if TS take it will be far beyond what your saving

 

jo public are getting very clever is finding out their legal rights with forums just as this one

 

your problem is often found by small shops selling on the web, but you have to factor all possible costs into price you sell for thats the way it is, trying to get round the DSR will only land you in trouble

 

not sure what your trying to say here "By a customer agreeing an immediate delivery rather than one made after the 7 day cooling off period" the seven days cooling off are from the receipt of goods not that you have to send within 7 days

Edited July 19, 2010 by kiptower

[perplexity]

Article 12 of the EU Distance Selling Directive is perfectly specific about it:

 

Binding nature

 

1. The consumer may not waive the rights conferred on him by the transposition of this Directive into national law.

 

2. Member States shall take the measures needed to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-member country as the law applicable to the contract if the latter has close connection with the territory of one or more Member States.

 

 

N.B. also:

 

Since the Consumer Protection from Unfair Trading Regulations 2008. a breach would be a strict liability criminal offence, which is to say that the fact is sufficient to convict, mens rea notwithstanding.

 

[buzby]

In essence, it still is a process whereby you hike your charges to include the return postage cost as part of the sale price. This way SHOULD the customer be delighted with the goods and keep them, your profit margin is greater.

 

Incredible, but true. Laws enacted to 'protect' the consumer end up costing them more. WHO would have thought?

[Lynnzer]

Article 12 of the EU Distance Selling Directive is perfectly specific about it:

 

 

 

 

N.B. also:

 

Since the Consumer Protection from Unfair Trading Regulations 2008. a breach would be a strict liability criminal offence, which is to say that the fact is sufficient to convict, mens rea notwithstanding.

 

Mens Rea in this context is a bit like saying, "I didn't know I was speeding".

I have no gripes at all with proper consumer protection.

I do not wish to put a distance buyer at any disadvantage, in fact they are at a huge advantage so that rather than driving for who knows how many miles the item can be despatched to them instead thus making a positive saving to them and the planet.

I do not want to become rich by "auctioning" something for a quid then charging £20 for post, Auctions being one of the few exceptions to the D.S.R's.

In fact I offer a service whereby potential customers may purchase something online, something they may well have seen elsewhere but not been able to source it in their particular colour or size. They may be hundreds of miles away or even in a different country.

The prices are at an already low point. I do not know, therefore cannot factor in any presumption of how many postage charges I should apply to the purchase price to offset the costs.

Now knowing the regulations I will soon probably have to take down my online purchasing facility. I think such a whoesale ban on refunds of costs necessarily and reasonably incurred is nonsense, especially where even a customer agrees to the nonsense application of it.

This is surely a huge disincentive to smaller retailers doing a honest job.

I think the only winner in this case is Post Office Counters.

[kiptower]

looks like your talking about EBAY ebay is NOT AN AUCTION actually

 

and the DSR does apply to traders on there

[geoff1248]

As I understand it your customers are returning goods to you not because they are faulty but because of "fit not being exact, style and colour preferences etc". Surely if there is nothing wrong with the goods then you are refunding/replacing as an act of goodwill so SOGA doesn't come into the argument does it?

[perplexity]

I do not want to become rich by "auctioning" something for a quid then charging £20 for post, Auctions being one of the few exceptions to the D.S.R's.

 

kiptower, above, is correct

 

The DSR exception is for a contract "concluded at an auction", not for an item sold by auction.

 

The crucial difference is that the auctioneer at an authentic auction accepts an offer made by the bidder, the inference being that this is at the risk of the bidder who made the offer.

 

On eBay a contract of sale is concluded when the buyer accepts the offer made by the seller, at a price already fixed by the bidding process, subject to eBay's rules which apply to all eBay transactions.

 

Albeit that eBay is awash with a flood of opinion to another effect, the fact that transactions concluded on eBay are not auctions is officially endorsed by eBay where it counts, in their representations to the European Commission, which follow in turn from a High Court Ruling in Germany, which was not yet disputed by any of the member states of the European Union.

 

[Bookworm]

Thanks. The problem is that by so doing, ie increasing the cost to cover such events, would put a difference between the garments in the shop and the same one on the website which is also illegal.

No, that's not correct. Check a site like PC World and you will see that they have "web only" prices and in store prices.

 

By a customer agreeing an immediate delivery rather than one made after the 7 day cooling off period, would this waive the rights of that person, obviously by prior agreement?

You seem to misunderstand how DSR work. People have 7 working days from when they receive the goods, not from when they place the order, so your scenario won't work.

 

Either you charge them the delivery each time, or you put your prices up to swallow it over the sale of many outfits, or you swallow the additional cost yourself. Sorry.

[Kraken1]

you might find this helpful:

 

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

 

Especially section 3.55

 

The regs themselves:

 

Statutory Instrument 2000 No. 2334. Reg 14 applies.

[My Real Name]

The DSRs require you to refund the original delivery charge, not the return delivery charge, provided you make this clear in your Ts & Cs.

 

The links in Kraken1's post are clear on this - if you do not specify that the customer is liable for the return charge, the seller becomes liable.

 

Many online retailers will sell items with free delivery, with the cost of delivery included in the value of the item itself.

 

It's up to you, as a business, to decide whether the marginal increase in cost is worth the marginal reduction in units shifted. That's what business is, after all.

[perplexity]

The DSRs require you to refund the original delivery charge, not the return delivery charge, provided you make this clear in your Ts & Cs.

 

It is unfortunate the way the myth persists that a supplier may oblige a buyer to pay for goods to be returned, by designing terms and conditions to that effect.

 

s.25 of the DSRs is perfectly clear about it:

 

(3) This paragraph applies to a term which requires the consumer to return any goods supplied to him under the contract if he cancels it under regulation 10.

 

(4) A term to which paragraph (3) applies shall, in the event of cancellation by the consumer under regulation 10, have effect only for the purposes of regulation 14[5] and 17[8].

17(4) stands, whatever the supplier's terms and conditions, therefore

 

... The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing. .....

The effect of requiring a buyer to return goods is to extend from 21 days to 6 months, the period the supplier has to collect the goods from a buyer who cancels, and to allow the supplier "to make a charge charge not exceeding the direct costs of recovering".

 

If the supplier would rather that the buyer goes the extra mile to send the goods back, the sensible way to encourage that is to cover the cost of it.

 

[Conniff]

Just like the club books do.

[Lynnzer]

I was tuned in to Radio 5 Live today around lunchtime and there was a topic about the new online shops springing up.

I'm sure I heard it said by the resident expert that purchases from a dot com internet address don't have return rights accorded to them.

I'm supposing that this is because most dot com companies are USA based but not necessarily so. How does this measure up for a UK based company with a dot com address?

[Conniff]

Distance buyers in the Uk have a seven working day period to examin the goods they have ordered over the internet and then return them for any reason if they decide against the purchase.

 

Also consumer rights cannot be waived even if you sign a document to that effect it has no standing.

[buzby]

I believe they are trying to use the term 'dot com' to refer to internet purchases, not anything to do with the domain typre they use. A US Sellers has no obligation to honour the EU DSR regulation, as the point of sale id with a US-based company. Once this becomes an EU sale, then DSR provisions apply.

[Lynnzer]

I believe they are trying to use the term 'dot com' to refer to internet purchases, not anything to do with the domain typre they use. A US Sellers has no obligation to honour the EU DSR regulation, as the point of sale id with a US-based company. Once this becomes an EU sale, then DSR provisions apply.

I couldn't pick up on the full discussion as I was driving in a busy area at the time however it did appear to be that an internet purchase from a .com website didn't have the same rights as as for instance a .co.uk site.

Whether or not the company was UK based or not didn't get a mention. I know that DSR's categorise all distance selling, even from a .com site as within the regualtions but just wondered if this was an anomoly in the way it was presented or a mistake by the presenter. I mean, you'd think an expert who gives financial advice on Radio 5 Live would be expected to be correct in what they say.

[buzby]

The DSR cannot enforce conditions on non-territorial matters. Similarly, it would be a nonsensical assertion to claim that .com had less protection than a .co.uk - it probably might have less, but only if it was a genuine US company trading from the UK. B&Q is diy.com - are they telling us DST won't apply for purchased from this site?

 

I'd stop listening to R5....!

[perplexity]

Whether or not the company was UK based or not didn't get a mention. I know that DSR's categorise all distance selling, even from a .com site as within the regualtions but just wondered if this was an anomoly in the way it was presented or a mistake by the presenter.

 

-----------

 

Section 210 of the Enterprise Act is wonderfully clear about it:

 

(5) For the purposes of a domestic infringement it is immaterial whether a person supplying goods or services has a place of business in the United Kingdom.

[buzby]

I just knew you'd be along with this irrelevance. The point is, TPTB can make up their rules, put have no POWER TO ENFORCE. In much the same way I'd tell an American based buyer to take I hike if they made an unreasonable demand or one I felt vexatious. The fact Congress gave them 'protection' is of no interest to me. The same holds true in reverse.

[Kraken1]

Woo! Perpled! Quick! someone quote the interpretation act!

 

Buz is right. There may well be complex provisions to determine what the jurisdiction of a contract actually is, but if you have bought from amazon.com you will struggle to enforce anything, even if you can show that English law and jurisdiction should prevail. You might, at a push, get away with english law but do you really fancy suing in the US under english law?

 

I'm guessing the point of the piece was to warn consumers to be aware of where a company actually is and not assume that a .co.uk or .com is indicative of the geographic location.

[perplexity]

Were it my intention to not only disregard the question as originally put, but to also insult the intelligence of the person who put it, I could have indulged myself by heckling about a seller in another country.

 

In the mean time, the question as put was:

 

How does this measure up for a UK based company with a dot com address?

 

In which respect it is perfectly correct to point out that it is immaterial whether a person supplying goods has a place of business in the United Kingdom.

 

It could also be worthwhile to point out there is no such thing as a right to return goods because of the UK Distance Selling Regulations. While a consumer's right to cancel the contract is absolute in any case, there is no way to force a seller to accept the return of goods if the seller would rather not have them back.

 

Whichever the case " the supplier shall reimburse any sum paid.."

 

8)

[Kraken1]

In which respect it is perfectly correct to point out that it is immaterial whether a person supplying goods has a place of business in the United Kingdom.

 

tosh.