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    • In terms of whether or not this is a private sale, clearly it will be for a judge to decide. It seems to me that we have somebody here who bred a litter of puppies and has sold several of them or all of them at probably around £1200 each. I think that is very different from selling your own private second-hand car to get what you can for it in order, for instance, to buy another one. Anyway it's for the judge to decide. In terms of whether or not the seller is aware of the defects – if they are a private seller – all it really means is that they are not subject to sale of goods legislation so that a purchaser in a private sale does not have specific protections. After that you have to fall back onto the common law of contract and once again I think that the liabilities are reasonably strict and I still think that even in a private sale if you bought something with defects which was represented to you as being without defects then you would probably have a good case. In this case, the dog has been accompanied by a health certificate and I think that is as good as any kind of representation dog is without defects. I think we are coming to an altogether more interesting issue. Apparently the dental defect with this puppy is observable and could have been detected by any reasonably careful examination carried out by a reasonable professional. But apparently also there is the possibility that there may be a more complicated problem which could be addressed by work costing up to £2000. What I'd like to know is whether this more complicated problem is as a result of the failure to spot the initial problem. Even if the initial problem had been spotted, with this still be a possibility that this more complicated work would be necessary? I suppose what I'm getting to his that at what point does one decide that a defect is an unacceptable defect or simply a risk that comes with purchasing all animals and therefore could still be considered as "satisfactory" because it would meet the reasonable expectations of any reasonable pet owner. To put it bluntly: are we saying here that if you buy an animal is less than genetically perfect, that you are purchasing defective goods and you are entitled to a refund? Does this mean that all animal traders are obliged to ensure that all the animals they sell are genetically perfect? This is dangerous territory: eugenics.  
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    • I think I still remain to be convinced that a court would not find the seller's offer to take the puppy back and give the OP a full refund both reasonable and acceptable.   Ignoring that this is the sale of a puppy, isn't this more akin to the private sale of a second-hand car?   I don't really know what the phrase:  "I recently bought a puppy from a home breeder. They have never breed dogs before and aren't a licensed business" means.  Is this a business to consumer sale, or is it simply the opportunistic private sale of puppies from a domestic litter?  I think the OP needs to establish this because it's not clear to me - yet.   AIUI, if I as a private individual privately sold, say,  a car with umpteen non-apparent faults or defects with it, but I was honestly unaware of them and could not be expected to be aware of them, then I'm not liable for any breach of contract when those faults and defects manifest themselves to the buyer a week later.  Isn't that what worried private sellers of cars are told here when aggrieved purchasers threaten to sue them?  It's not immediately obvious to me why this is necessarily any different - unless this is clearly a business to consumer sale.   The OP also says:  "Our puppy was sold as having passed a full health check from Vets4Pets", and so far as I can see this isn't disputed.  Unless that health check revealed the dental problem the OP is now complaining about, but the OP never was shown it (seems unlikely that the seller would mention it but not make the results available), then I think the seller may well be entitled to rely on it.  What more could they do to ascertain the health of the puppy?   I think this is not necessarily a clear-cut claim, and from the way the OP describes the breeder I think the question whether this is a consumer sale or a private sale may not have a black or white answer.     1.  The OP mentions following advice to buy puppies bred from a "home pet" (or similar such wording).  Not clear if this was the case here, but if it was, doesn't this suggest a private rather than consumer or trade sale?   2.  The OP also suggests that the health of the puppy was misrepresented, but is this necessarily correct?  They say the puppy was advertised as having had a "full health check", but that's not the same as saying the puppy was actually healthy.  And if it was a private sale, is the seller required to declare health problems they are aware of if they aren't specifically asked?
    • Ok,    I thought it may of helped as their DN stated 2 installments in arrears when it was issued on 10/2/17, but it would infact only have been 1 installment overdue 17/01/17.   I will keep to what I already know and stop over thinking further issues. 😁    
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ng67860

Packlink and Hermes again

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A week ago I made the mistake of using Packlink + Hermes to send a high value (to me) item which I sold on eBay. The item sold for £1500 but has not yet been delivered, despite me paying for next day delivery. 

 

I am going through the motions with Packlink and Hermes - speaking to their chat representatives who don't seem too bothered. However, I'm starting to fear they have lost the item. 

 

From reading through the posts here this seems a likely outcome. As soon as they confirm the parcel is lost, I plan to take them on in whatever way necessary due to the value of the item. 

 

Does anyone have any initial thoughts/ advice? Should I be going after Hermes rather than Packlink? 

 

Thanks 

 

 

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It's still very early days – but for the moment I would go through both of them.

Was the value correctly declared? Did you buy one of their so-called insurance covers?

What was the item in question?


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The item is a digital camera. I know it's relatively early but I have the buyer requesting a refund which I will of course have to process. 

 

I did not purchase any additional insurance, only the "signed for" option which entitles me to £25 compensation. 

 

As regards declaring the value, I was not asked for this at any point. However, I purchased the shipping through the eBay portal, which appears to automatically feed all the details to Packlink, including the value.

 

image.png.f9c48e0e529c99ab28f8f9a6810fe825.png

 

Of course, Hermes are saying I should pursue Packlink as my contract is with them. 

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Well it's absolutely correct that you will need to process a refund – and you should set about doing this as quickly as possible in order to reduce the number of problems you are having as a result of this.

Other than that, you will have to go through the claim process – with Packlink and with Hermes. I completely agree that they will decline liability and then you will have to consider further action.

Packlink are out of the jurisdiction and so therefore you will have to proceed against Hermes.

I'm sure that you have read around here enough to understand what your risk factors are.

Bringing a small claim for £1500 means that you will pay a claim fee of £80 and then if they push you to a hearing, you will have to pay a further fee of £115 or £170 if you want to add interest. The threshold between the two fees is £1500.

Once again, I hope you have read around enough to know that generally speaking Hermes would rather pay up then allow the matter to going to court. However you are claiming for a figure of £1500 and I'm pretty certain that this will prompt them to go all the way and to put you in court.

We will have to see the basis on which they decline liability – but I suppose that it will be the fact that you haven't paid any insurance. You better look around this website to see the arguments against that – I'm confident that it is unfair for them to require a further fee to insure themselves against their own negligence and I consider that it is unfair term. You have paid the contractual price for the carriage of your goods.

However, I'm not sure we have ever had a claim against Hermes for such an expensive item – and so this may be the first time that my particular theory has been tested in court and so this is a risk you will have to take.

If you win then you will get your money back, plus interest if it is claimed – plus your court fees of about £200. If you lose then you will lose the value of the camera and also the court fees.

This is something you will have to weigh up and you will have to decide.

I rate your chances of success in court is very high and of course we will support you all the way – but you have to understand that there is an element of risk. One factor will be whether you could have gone with a different courier in which insurance was already included or which operated a tariff fee system so that the fee became more in line with the value of the item being carried. The answer to this in fact is that it's not possible. All courier companies seem to operate in the same way that they have a standard delivery fee and then if you want additional insurance cover then you have to pay for it.

It's a simple matter for courier companies to restructure their system of fees so that they operate on a tariff base – but they don't – and it is their choice not to do so


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By the way, if you are going to bring this case then you are going to need to prepare your arguments very carefully. As I have already suggested, it is likely to be defended and it is very likely to come up before a judge.

You should be looking carefully at the consumer rights act – especially the sections dealing with unfair terms and restrictions on exclusion of liability.

This means that you should be looking particularly at section 47, section 48 and section 49 – which basically impose a duty to carry out services with reasonable skill and care.
You should then be looking at part two which deal specifically with unfair terms and also schedule two which gives a nonexhaustive list of examples of unfair terms – and I think that example number two is probably a reasonable starting point.
Don't forget that they are merely examples and you will need to persuade the court that your situation is capable of being unfair on the basis that you have paid the delivery fee and that it is unfair to expect you to ensure Hermes against their own negligence because this effectively protects them from their statutory duty to exercise reasonable skill and care when carrying out the service that they have contracted with you to do.

I think the arguments are very powerful and I think you have an excellent chance of success


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Thank you for the detailed replies. Based on your assessment of the risk and chances I will be proceeding against Hermes once it is confirmed that they have lost the item and will not be compensating. 

 

In the meantime I will study the abovementioned consumer rights act sections. 

 

Should I let them know of my intentions to take further action? 


Has anyone found an customer services email address so that I can bypass the painful chat operators? 

 

 

 

 

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Just an update:  Packlink have now replied confirming the parcel as lost. I have completed the loss claim form. 

 

"The investigation regarding shipment GB2020EBAY0020985351 has now been completed. The parcel has been confirmed by the carrier lost.
In order to process your claim please complete the claim form the link below:"

 

I would like a similar statement from Hermes and would also like to know what this "investigation" consisted of.  

 

 

 

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Packlink are now processing my claim (I entered the full amount), they can take up to 28 days to process. 

 

A thought crossed my mind - is it possible that Packlink claims the full £1500 from Hermes only to pass on £25 to me? 

 

In the meantime I'm struggling to get through to Hermes. They keep on directing me to Packlink. 

 

 

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Firstly, the image which you have put up in your post is so small as to be illegible – and I use a reasonably large screen.

Please would you repost it and then I suggest that you actually check it to see if it is legible to you. The easy thing to do course would be to post it up in PDF format because then it can be enlarged and read easily by anybody with any kind of screen.

 

 

Secondly, it seems to me that you are now in a difficult position. If you proceed to threaten Hermes and to bring an action against them while there is apparently a formal investigation underway by Packlink, then they could easily accuse you later on of being too precipitative and not trying some mediative/out-of-court process.

Of course I'm completely certain that Packlink will come back and refuse you anything – but I'm afraid that they have put you in a position where if you issue proceedings before the expiry of the 28 days then they will have gained a certain moral high ground.

So I suggest that you send a letter of claim to Hermes but instead of the normal 14 days, you give 29 days. It's very frustrating – but I think that this is in your best interests. Also, I suppose that there is an outside chance that they may decide to compensate you the full amount and in that case if you have already issued the claim papers then you will have lost your claim fee.

 


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Incidentally, this will also give you an opportunity to send Hermes an SAR – which you should do today.


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I had confused this Hermes story with another Hermes story. There are so many of them.

I think that you should also begin a formal complaint and claim to Hermes. They will knock you back – but at least you will establish a paper trail that you have tried to use their complaints process and exhausted all possibilities.

Do this separately from the SAR. Send the SAR now


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Since posting earlier, Packlink have responded to my claim and will pay £25 to settle, as expected. See attached PDF. 

 

Should I refuse this? 

 

packlink claim and settlement_edit.pdf

 

I will continue trying to lodge a formal complaint with Hermes and send an SAR before bringing further action. 

 

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I can scarcely believe that you are asking this question.

They have lost an item worth £1500 and you are debating whether or not to accept £25 and you want our advice on it.

I think I'll leave this difficult decision to you.

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