UKC

I've ordered a portable DVD writer online (via Amazon, from a marketplace seller). It took longer than it should have done to arrive, and when it did arrive it turned out they'd sent me the wrong model. I raised the issue with them through Amazon and the seller asked for photos of the item to make sure it was the wrong model before they'd issue an RMA number.

Now they're saying that, although they will cover the return postage, I should insure the package at my cost as they cannot be held responsible for items lost in transit.

I don't think this is right. They sent me the wrong thing so it's up to them to get it back. Why should I be at risk of ending up out of pocket in any way because of their mistake? Basically, they sent me something I didn't ask for. If I get proof of it having been handed over to Royal Mail then I reckon that should be the end of my responsibility.

Does anyone happen to know precisely what the distance selling regs say about this situation? If it makes any difference, the seller is not UK-based but is within the EU (the Channel Isles).

In reply to Martin W:

What is wrong with what they sent? Does it write DVDs or make cups of tea?

In reply to ByEek:

What's that got to do with anything!? He was sent the wrong product FFS!

In reply to Doghouse:

Take it up with amazon

In reply to Martin W:

Simple matter of contract. They failed to meet the terms; you are due a refund. How they collect their goods is up to them and you carry no responsibility. I have, in the past, insisted on an evening/ weekend courier pickup because getting to the post office was inconvenient.
Get email confirmation that they are happy with postage (including insurance arrangements). Add that you are prepared to leave your own costs associated with return postage out (time fuel etc), if the matter is resolved quickly.

In reply to Martin W:


Because you ordered off them in the first place?

I'm not a consumer expert, so I could be wrong but AFAIK it is the responsibility of the buyer to effect return of cancelled orders. The law doesn't stipulate the manner of doing this but it does require return and proof of purchase.

By accepting delivery you are not accepting that the goods meet your requirements (contrary to what it says on some forms that say you accept they are in good condition etc) but you are taking legal possession of the goods so the law says that the seller doesn't have to refund until possession is passed back to them.

Using a service provider to effect return does not transfer possession until delivery has been made at the other end and the law doesn't require reimbursement of the costs of re-delivery ( or else you could drive them back yourself and put in a claim of £200 for the cost of the re-delivery).

Hence if it gets lost it is still your liability.

Poor service maybe but not illegal.

In reply to MarkJH:


Tempting, I know but I don't think you can back this up in law, although I'd be impressed if you could find something that confirmed this.

In reply to Martin W:

They should organise to pick it up, it's their responsibility then.

In reply to Martin W:

If the goods are not what you ordered then they are clearly not in conformity with the contract, so according to the Sale of Goods Act 1979 (as ammended) Section 35 paragraphs (1) and (2)(a):

(1) The buyer is deemed to have accepted the goods subject to subsection (2) below—

(a)when he intimates to the seller that he has accepted them, or

(b)when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.

(2) Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose—

(a)of ascertaining whether they are in conformity with the contract, ...


So you may inform the seller that you have not accepted the goods and then according to section 36:

Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.


Which means you are entitled to a refund as soon as you notify the seller you have not accepted the goods, and it is the seller's responsibility to arrrange for the goods to be collected from you.

In reply to winhill:

It doesn't need a separate law. The obligations of the buyer and the seller are part of the contract and can be enforced as such. The contract was that Martin W agreed to pay a specified amount of money for a specified product. If the seller sends the wrong item then Martin W is free from his contractual obligation to pay the money and is due a refund regardless of what happens to the product. The item that was sent remains (and always was) property of the seller. How they arrange to reclaim the item is up to them; he should, obviously, take reasonable steps to keep it safe, but he carries no further responsibility for it and certainly is not required to bear any costs for return.

In reply to Doghouse:


If they sent a perfectly reasonable external DVD writer (the OP presumably wanting to burn DVDs) perhaps it might be easier to just use that one rather than bother with the faff of sending it back and still not having a DVD writer. Talk about choosing your battles!

In reply to ByEek:

Don't be daft, it's hardly a battle to reject something you didn't ask for.

In reply to MarkJH:


Correct that it depends on the contract but who reads the small print?

It doesn't need a separate law, it is in the latest regulations (Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013) that came into effect on 13th June 2014.

"Return of goods in the event of cancellation
35.—(1) Where a sales contract is cancelled under regulation 29(1), it is the trader’s responsibility to collect the goods if—
(a) the trader has offered to collect them, or
(b) in the case of an off-premises contract, the goods were delivered to the consumer’s home when the contract was entered into and could not, by their nature, normally be returned by post.

(2) If it is not the trader’s responsibility under paragraph (1) to collect the goods, the consumer must—
(a) send them back, or
(b) hand them over to the trader or to a person authorised by the trader to receive them. "

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/2...

In reply to winhill:

But he isn't cancelling the order.

In reply to MarkJH:

Thanks for your informed advice. Does it make any difference that the merchant is based in Guernsey?

In reply to ByEek:

It's my battle to choose if I want to, thanks all the same.

As it happens the model they sent was the same as the one that I need to replace because it stopped working. So even if the one they sent did work I'd rather have the later model, especially since that model has some additional capability cf the old one.

In reply to winhill:


You don't need to read the small print. The email confirmation will provide sufficient detail to establish the basic terms of the contract (i.e. sum agreed, and make/model of the product)


A cancellation is not relevant to this case; the seller is in breach of contract. The consumer contracts regulations support the enforcement of the contract, but there is no necessity to refer to them in simple cases like this.

In reply to Martin W:



Just be aware that I am not a lawyer. As I said, my only expertise is having dealt with similar issues on my own behalf. In all cases, a clear email setting out the contractual obligations was sufficient. Guernsey isn't part of the UK or the EU, so enforcing a contract may be harder, but you probably wouldn't/ shouldn't ever get to that stage anyway.

In reply to ByEek:


So when you order that BMW M5 and a Ford KA turns up, you'd be happy?

After all, they are both cars and fulfil the same function.

In reply to Martin W:

I'd agree with you. They sent the wrong article so it's up to them to insure it, should they so wish. They made the mistake, they should rectify it, including being responsible for any associated costs, which must surely be insuring it, if they feel the need.

In reply to Ghastly Rubberfeet:


So when it comes to external DVD writers, just exactly which one would you define as the BMW M5 and which the Ford KA?

In reply to ByEek:

Easy, the one he ordered is the M5.

In reply to ByEek: He's even explained why he wanted the one he ordered.

In reply to Martin W:


Yes, since the U.K. Sale of Goods Act doesn't directly apply. I would suggest contacting Guernsey's Trading Standards Service for advice, contact details at the bottom of this page:
http://www.gov.gg/tradingstandards

In reply to ByEek:

For example one which writes quickly, supports many formats (including blu-ray), has drivers for many OS' s, compact size, supports all USB standards; as opposed to one that writes very slowly, supports only XP (say), only supports one format, size of small fridge, supports only USB 1.

Quick scan of amazon show a price variance of from 186 GBP down to 6.99 which does kind of suggest some sort of difference between models.

In reply to Martin W:

Have there been any further developments? I'm keen to know the outcome of this one.

In reply to Martin W:

Don´t forget to reclaim the VAT you paid on importation