2018-04-06

IANAL

Even though not a lawyer, I do get asked advice some times by friends and family, and with the caveat that I am not a lawyer I sometimes dig out the relevant legislation and provide some wisdom from my experience in life :-)

Of course, I will be interested if my lawyer friends say I have this one wrong, but one of the things that has come from EU membership is some tighter consumer protections.

A key one is "The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013" - I have mentioned it before.

The reason it came up is a friend of mine saw this on a web site when ordering an item from a UK company, as a consumer, so subject to that law.


The clear implication by saying the "insured" option means no loss to you for damage or loss in transit is the converse that if you choose uninsured then you would lose out if damage or loss in transit.

However, that is not something they actually state, it is simply implied, so maybe they are just trying to be cunning to get you to pay the extra for insurance so they don't have to.

The law, in section 43 of that consumer contracts stuff is pretty clear :-

Passing of risk

43.—(1) A sales contract is to be treated as including the following provisions as terms.
(2) The goods remain at the trader’s risk until they come into the physical possession of
(a)the consumer, or
(b)a person identified by the consumer to take possession of the goods.
(3) Paragraph (2) does not apply if the goods are delivered to a carrier who—
(a)is commissioned by the consumer to deliver the goods, and
(b)is not a carrier the trader named as an option for the consumer.
(4) In that case the goods are at the consumer’s risk on and after delivery to the carrier.
(5) Paragraph (4) does not affect any liability of the carrier to the consumer in respect of the goods. 

So, if you use a courier they offer, then the trader has all the risk until it physically arrives in your possession, basically! No need to pay extra for insured courier.

Watch out for that when ordering on-line...

21 comments:

  1. Personally, I find it quite useful when companies do things like this. Because it's a giant waving red flag saying "pay by credit card and DO NOT use paypal or any other intermediary so that you have section 75 protection and can dispute it with a more reasonable party in the event of an issue".

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    1. Indeed. It's like marketing slogans, they often tell you what an organisation is not. For instance, if a slogan says "Helpful bank", I expect the customer service to be dire. If they say "Excellent prices", I expect it to be a rip-off. If they say "The world's local bank", I expect to be put through to some faraway call centre when I call them. "World's best wifi" means probably not a good signal. And so on.

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    2. Actually I have found paying by PayPal to be really useful.

      I ordered a new dishwasher online from John Lewis because our old one died. I unexpectedly had a spare hour and used it to discover that I could actually fix the old one so I canceled the order before it was shipped.

      It took 6 months of wrangling with John Lewis for them to say that they "couldn't refund the money" and "they would not enter into any further discussions about it".

      Went to PayPal and they had it sorted in a day using their buyer protection scheme.

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  2. Trying to explain this to a certain shop / courier company now. My package has been left "in a safe place" despite me being home all day. Where this "safe place" is I have no idea, because it's certainly nowhere near my house! It's a relatively new postcode (less than 12 months old) so it's not in everyone's computer systems, and the drivers just leave it wherever the computer tells them to!

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    1. I for one would rather we all communicated positions using GPS coordinates rather than postcodes. We all know where we stand with GPS coordinates.

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    2. There is no good excuse for getting postcodes wrong any more, since they're all available via CodePoint Open, which is updated several times a year. (You need to convert them from National Grid to lat/long, but that's trivial.)

      https://www.ordnancesurvey.co.uk/opendatadownload/products.html#CODEPO

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    3. They are all in Royal Mail PAF too which is the definitive source. Royal Mail own and operate the postcode system. If Royal Mail put it in PAF then the postcode exists. If they don't - then it doesn't. Simple.

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    4. Sure, but you have to pay for PAF updates. CODEPO is free.

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    5. Oh yeah, definitely no excuse once it's in the PAF. Along the lines of using coordinates, came across this the other day: https://what3words.com

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    6. If you only need to check exceptions that have been spat out by your automated systems then you can check 50 PAF entries free of charge per day on www.royalmail.com That should be enough for handling exceptions/oddities/errors.

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    7. what3words is proprietary and closed. Mapcode is open and jolly good, or there's Google's reimplementation Open Location Code.

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  3. Maybe the insurance covers you if the goods are lost in transit and the supplier has to resend, causing a delay, and you lose out financially as a result?

    Or maybe "damage during delivery" means if the courier breaks your doorbell by pressing too hard?

    Or maybe they're just trying it on ;)

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    1. I don't know why, but your message made me think of this catchy tune: https://www.youtube.com/watch?v=wt8K2juCzuc

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  4. For £6.99 I would want my item delivered next day, not 6-8 days! He he he.

    But out of interest, how do you guys deal with taking things back to large stores like PC World? I am usually very good at arguing with jobsworths, however on one occasion recently I was told to go back to the manufacturer, and when I said but my contract is with you as the retailer, they said the manufacturer was acting as their "agent". I found that one tricky to handle so just left them a bad review on the Internet but did wonder where I stood legally speaking.

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    1. Legally you are right and can ask the retailer for a replacement, repair or (within 30 days) refund. The relevant legislation is the Consumer Rights Act 2015 (before that it was the Sale of Goods Act).
      https://www.which.co.uk/consumer-rights/regulation/consumer-rights-act

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    2. This is where you go to your local trading standards department. The law is very clear that there is no escape from liability as a retailer from statutory consumer rights (note that this does not include if you just don't want the goods, that's something many retailers just accept to keep your custom). If you have a statutory reason for returning the goods (usually that the goods are not fit for purpose sold, unsafe, misdescribed, etc), then your contract is with the retailer not the manufacturer. Extended warranties and similar can depending on their wording create additional relationships directly with the manufacturer with their own methods of return but they don't eliminate the Sale of Goods act sale. Fortunately you don't need a solicitor to deal with these matters as trading standards will be happy to help (https://www.citizensadvice.org.uk/consumer/get-more-help/report-to-trading-standards/).

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    3. I used to work for Comet, and we would do similar.

      The position is that you have alleged the item is faulty, and yes your contract is with us. We don't have the ability to repair it ourselves, but we have appointed a repair agent to do so on our behalf. We happen to have chosen the manufacturer of the item, as we believe they are best placed to perform the repair. We're not denying liability for the repair, just pointing you to the correct department. If you don't want to deal with the manufacturer, that is your right, you can leave it here and we'll do it for you, it's the exact same process, it just might take a bit longer, and is more effort for you as you have to bring it to us, collect it afterwards, etc, and John who deals with the repairs isn't in until next friday so it won't even get sent off for a week....

      Technically they are not doing anything wrong....

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    4. Oh dear. This is the sort of awful attitude that prevents me using firms like Comet et al. And that isn't going to change!

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    5. Yeah. Compare that with Amazon who just email you a freepost label to send it back and then they refund you, no questions asked. No mind games or Saturday boys trying to outsmart you, just good old fashioned customer service. Combine that with parking charges and it’s no wonder the high street is vanishing.

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  5. Anonymous - who did you pay and was there a contract, if you paid them and there is no contract - they are the seller. If there is a contract - read it.

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    1. There is always a contract if you buy something. Most contracts do not take a written form.

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