Feb 18 2011
I’ve recently been looking to purchase a piece of equipment online which is not available from big-name suppliers, only from a limited number lesser-known websites. Having no reputation upon which to base a purchasing decision, a viable method to choose between a reliable site and a potentially bad site could be to see how well each site’s Terms & Conditions comply with the legal requirements of the UK Distance Selling regulations – legal requirements which either seem to be frequently misunderstood by legitimate sellers or frequently mis-quoted by sellers who seemingly wish to shirk their responsibilities in an attempt to force unlawful terms onto unwitting customers.
Please note that these regulations only apply when goods are purchased remotely, without having viewed the goods prior to purchase. They in fact give consumers many more rights when making purchases via the internet than if they purchased from a shop – to the point where it in many cases no longer makes sense to purchase big-ticket items from a bricks-and-mortar shop at all!
To illustrate the issue raised above, let’s take a look at the Terms & Conditions of the first site I found selling the particular item I was interested in:
If you have simply changed your mind about any item ordered and you wish to return it, you can do so provided you inform us of your decision within 7 days of receipt. The item must not be used and must be ‘as new’ when returned to us. Once you’ve informed us that you wish to return goods, you have 14 calendar days to do so, at your own expense. Once the item is received, we refund by original payment method for unwanted items within seven days from receipt (items may be subject to a 15% restocking fee). Please note this policy has some limitations and does not apply to business customers (Distance Selling Regulations do not apply to at work customers or our Business customers).
The above is correct in so far as the DSRs, unless extended in the T&Cs, do apply for seven days from receipt of the item in question… but unfortunately this is where the compliance with the law of this passage ends.
Whilst the purchaser has a duty of care to try to maintain the condition of the purchased item, the seller is not allowed to insist upon the item being ‘as new’ and certainly not unused. Indeed, the seller must accept the item back in any condition, but may seek legal recourse if the item has been unreasonably ill-treated – although this does not remove from them the obligation to offer an immediate refund.
Once the purchaser has notified the seller that they wish to cancel their contract to purchase, the seller must offer a refund immediately: they have no legal recourse to withhold any refund until the goods are returned (and indeed if the goods aren’t returned, then the seller may only charge the purchaser for the direct cost of recovery – they cannot impose additional penalties).
The purchaser has no legally-defined time limit within which they must return the goods in order to receive a refund. The seller can certainly ask for the goods back within 14 days, but should make clear that breaching this request would not prevent a refund from being given in full.
The seller is allowed to specify that the cost of returning goods falls upon the purchaser.
As previously mentioned, the seller has no legal basis for awaiting the return of goods before offering a refund and is definitely not allowed under any circumstance to charge a restocking or administrative fee.
The distance selling regulations do indeed not apply to business customers, but the “at work customer” mentioned above has no legal definition and appears to be a term entirely of the author’s creation.
Let’s look at another:
Right to Cancel
9.1 You have a cooling off period of 14 days after the date on which you have received the Goods to cancel the Contract, and return the Goods at your cost and receive a full refund of the purchase price.
9.2 During the cooling off period any cancellation must be given by written notice by either party.
9.3 Goods must be returned complete and undamaged with all accessories and instructions. The original packing must be returned in reasonable condition.
9.5 In the event that we supply substituted Goods to you in accordance with the provisions of Clause 2, your right to cancel is as set out as above except that the cost of returning the Goods shall be borne by us.
We’re off to a good start here – this retailer has decided to extend the mandatory seven day cooling-off period to fourteen days, and has clearly stated that the cost of returning the goods falls upon the purchaser: fine.
Requiring notification in writing (or at least by letter, fax, or email – a telephone call is not sufficient) is also correct.
Unfortunately, we hit a snag with item 9.3: Whilst the seller can ask that a purchaser return the packaging, they are unable to insist upon this.
Likewise whilst the purchaser has a statutory duty to take reasonable care of the goods, a blanket requirement of the goods being undamaged cannot be enforced.
Not bad, but still misleading in this important respect…
Finally we have a third site which specifies, in its entirety:
You have the right to cancel your purchase within seven days of purchase or seven days of receipt of the service purchased (whichever is the longer). Refunds will be made in full, upon receipt of the goods. To request a refund please email us at:-
stating your details and the item(s) purchased and when they were purchased. Refunds will be made to the credit or debit card you purchased from.
… which cannot be accused of being either inaccurate or needlessly verbose!
Legally, the seller may not await receipt of the returned goods before issuing a refund – but this in a real-world context, it may be difficult to argue this point.
Note that the important thing to note here is that, since these Terms and Conditions do not specify that the purchaser is responsible for the cost of returning goods declined under the DSRs, this cost must be borne by the seller.
So there we have it – it’s well worth familiarising yourself with your legal rights when purchasing items online, as sellers large and small seem to be willing to try to hoodwink unwary customers into accepting at face-value unlawful contracts when purchasing goods at a distance.
More to the point, if you decide not to make a purchase from a website because they have a returns policy which does not adhere to the requirements of the Distance Selling Regulations, then contact the company in question and let them know that they have lost a sale for this very reason!