Know your Rights (DSR)

cavemanoc · 22 Feb 2006 at 12:45

Bit of a rant, so standby!
EDIT: (Going blind in my old age - finally found Overclocker's T&C's - and happily they are fully compliant )

While perusing the net and eyeing up a TFT monitor (shamefully, it was on a competitor's site :eek:

) I broke with tradition and decided to read their terms and conditions.

Basically, (insert unscrupulous etailor here) the FAQ explaining their Terms and Conditions states that if you open the box/ break the seal of your goods (TFT screen, for me) you waive the right to return under the 'Cooling off period' described in the Distance Selling Regulations.

Now, having read the act this seems like complete horlicks to me - the whole point of the act is to allow the consumer the same opportunity to view the goods as if he had gone into the shop (a little hard through the packaging!) - and hardware is NOT one of the exempted items smile.gif

To my mind, this would also mean that you should be allowed to power it on and test it as well.

(All this aside from your rights under the sale of goods act, which is obviously very different.)

A couple of relevant sites:

The Act itself

The DTI's guidelines

DTI's Guide to Business

Couple of key points really nailed this for me:

Consumers have a cooling off period in which they can withdraw from the contract for any reason. The cooling off period begins as soon as the order has been made. In the case of goods, it ends seven working days after the day of receipt of the goods.

The right to cancel allows the consumer time to examine the goods or services, as they would have when buying in a shop.

Both taken from the DTI's guidelines.

Now there are some exceptions, but the only potentially relevant one here is :

(e) the supply of audio or video recordings or computer software if they are
unsealed by the consumer;

- also, anything custom built!

Some companies attempt to extend this to cover the opening of ANY goods - clearly wrong!

Now - the offender in question correctly informs you of the DSR's in the Terms and Conditions, but while perusing their FAQ I found the Following:

(Shifty Trader) will refuse any items returned if:

1. The goods have not been returned within 28 days.

2. The product packaging has been opened or seals have been broken.

Goods that are rejected due to the reasons above will be returned to the customer at their expense.

Obviously utter Horlicks! I get very fed up with companies trying to sidestep their obligations under the law and relying on consumer ignorance to pad their profit margins.

Bottom Line: Know Your Rights

Feel free to share any similar experience you've had!

Davey_Pitch · 22 Feb 2006 at 12:50

Aye, knowing your rights, especially when buying online, is an essential part of shopping should you get anything that's faulty. I hope you speak to someone senior at said e-tailor and shove the DSR in their face and see how long it takes for them to backtrack. If he stands his ground simply threaten them with the Small Claims Court, which will certainly rule in your favour.

PinkPig · 22 Feb 2006 at 12:51

I'm not convinced. It's supposed to give you the "same opportunity to examine" that you would have in a shop. What shop lets you open up a graphics card, pop it in your PC, see if you like it, then put it back on the shelf and walk out?

Le_Petit_Lapin · 22 Feb 2006 at 12:53

Aye you trying to say that the "Shifty Trader" wouldnt accept the goods back of you'd opened the box?

How are you supposed to check for faults then? X-ray vision?

kaiowas · 22 Feb 2006 at 13:11

Le_Petit_Lapin said:
Aye you trying to say that the "Shifty Trader" wouldnt accept the goods back of you'd opened the box?

How are you supposed to check for faults then? X-ray vision?

The DSR have nothing to do with faulty goods. If it's faulty then you can still return it under the Sale of Goods Act. The DSR are all about trying to give the consumer an opportunity to view the goods in person before being committed to purchase.

For example, you might see some pics of a PC case on the 'net and think it looks quite good. You could do one of 2 things:

Go to a PC shop and have a member of staff get one out of the box for you to look at, you decide you don't like it and you walk away.

Or you could buy it online then open the box, have a look and decide you don't like it then return it under the DSR.

Borris · 22 Feb 2006 at 13:18

"Restocking fees" are a no-no too.

Also, the requirement is not to return an item within 7 days, but to inform the vendor or the intent to return, which must then be executed within a reasonable time.

cavemanoc · 22 Feb 2006 at 13:45

All valid points and absolutely correct:

Your rights under the Sale of Goods Act are different and cover fault/Unfit for purpose.

The GFX card is a valid point, though have you ever tried? Could be amusing. But that is slightly different - If I went into a shop to buy a TFT screen I would expect to see it in action - if I couldn't judge it's quality first hand, no way would I part with that kind of money! (Often haven't bought because the shops were too incompetent/lazy to rig their displays properly - how many times have you seen them trying to sell a £1000+ tv with a poor signal?)

EDIT: And yes - I will be having words with the E-tailor - fortunately I didn't buy in the end, but will still have a go at them, and if they don't change - DTI here I come!

Borris · 22 Feb 2006 at 13:50

Quite often, with a TFT, it's easier to return it under DSR than as a faulty product - Most TFT vendors and manufactures have tolerance limits for dead pixels, and will not accept a few dead pixels as being faulty.

DRZ · 22 Feb 2006 at 14:00

Somewhere in there there will be a line stating "this does not affect your statutory rights" basically meaning that they can put whatever they like to try and wriggle out of their responsibilities but at the end of the day, they have to conform to the law.

Davey_Pitch · 22 Feb 2006 at 14:15

DRZ said:
Somewhere in there there will be a line stating "this does not affect your statutory rights" basically meaning that they can put whatever they like to try and wriggle out of their responsibilities but at the end of the day, they have to conform to the law.

Aye. It seems to me that some companies put their own rules and regs in the hope people will see it and accept it as gospel as they don't know the law fully. I dread to think how much money they could make this way :/

DRZ · 22 Feb 2006 at 14:31

Davey_Pitch said:
Aye. It seems to me that some companies put their own rules and regs in the hope people will see it and accept it as gospel as they don't know the law fully. I dread to think how much money they could make this way :/

Banks made £3.5Bn in profit (IIRC) last year doing exactly this :mad:

Borris · 22 Feb 2006 at 14:43

DRZ said:
Banks made £3.5Bn in profit (IIRC) last year doing exactly this

Apples and oranges, I'm afraid - The banking industry is regulated by stringent rules that prevent them from just that.

Beansprout · 22 Feb 2006 at 14:48

DRZ said:
Banks made £3.5Bn in profit (IIRC) last year doing exactly this

Wasn't that the profit gained by holding on to cheque and bank transfers for a few days? Seems close, anyway.

DRZ · 22 Feb 2006 at 14:59

Borris said:
Apples and oranges, I'm afraid - The banking industry is regulated by stringent rules that prevent them from just that.

Not stringent enough to stop them from having penalty clauses in contracts, unenforceable under UK law

Borris · 22 Feb 2006 at 15:02

DRZ said:
Not stringent enough to stop them from having penalty clauses in contracts, unenforceable under UK law

Could you give me an example?

DRZ · 22 Feb 2006 at 15:04

Charges for going overdrawn is the biggest and most clear-cut example. It was from this that banks made £3.5bn profit.

Its not only unenforceable its also against the Banking Code.

Borris · 22 Feb 2006 at 15:12

DRZ said:
Charges for going overdrawn is the biggest and most clear-cut example. It was from this that banks made £3.5bn profit.

Its not only unenforceable its also against the Banking Code.

That's not true, I'm afraid.

You are subject to contractual obligations when you open an account, which you agree to - if you breach these, the remedies are either set out in the agreement, or in the statutes.

They are enforceable by the courts.

Banks must inform you of their tarifs, give you advanced warning of changes and when they are going to charge you.

Nothing in the banking code refers to not charging for breaching overdraft limits.

Where is the £3.5b figure from? Is it all UK banks? Is it just from accounts held domestically in the UK?

DRZ · 22 Feb 2006 at 15:16

£3bn in charges - http://news.bbc.co.uk/1/hi/business/3621002.stm

Woah woah woah - Pentalty clauses in contracts are NOT enforceable under UK law.

Taken from www.bankchargeshell.co.uk:

The established jurisprudence

The law relating to penalties has been established through case law. The cases date back to the nineteenth century and the courts have been consistent in the way that they have ruled on penalty clauses.

Wilson v. Love (1896)

A tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings a ton more than straw.

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915)

In the particular case, the judges held that the sum specified in the contract was reasonable and was classified as liquidated damages. However, in this case, Lord Dunedin laid down rules which are still applied today in these types of cases:

i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable".

ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty. Ford Motor Co. v. Armstrong (1915)

In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

Bridge v. Campbell Discount Co. Ltd. (1962)

In this case a customer bought a car under a hire purchase agreement. He paid the initial and first payments and then cancelled the agreement. The company tried to recover the sums specified in the contract for canceling the agreement, but the courts held that the sums payable were excessive and constituted a penalty clause. It was, therefore, unenforceable.

Murray v. Leisureplay (2004)

Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages.

There have been several other cases over the past century. Any good book on contract law or business law will contain references to "penalty clauses", "penalties" or "liquidated damages" cases and a discussion of the law.

Its pretty much like being bound to those "illegal" T&Cs in the OP, they dont mean anything when challenged in a courtroom.

callmeBadger · 22 Feb 2006 at 15:26

DRZ said:
Not stringent enough to stop them from having penalty clauses in contracts, unenforceable under UK law

I had a standing order that was due on the first tuesday of each month. I get paid the last friday of each month.

Due to a bank holiday monday they toke the money out on the Thursday before, the Standing order would have placed me into OD by less than £5

£25 letter warning me about the breach (putting me £20 OD) £35 letter for "Unauthorised Overdraft", putting me £50 over. All becouse they deided to take the money early.

I kicked up one hell of a fuss loudly in the middle of the lunch time rush a few days latter, wouldn't go into a private office to quietly discuss it, eventually as a gesture of goodwill they waived the charges.

To this day i don't know why a bank holiday monday means automated transfers by computers does not happen on a tuesday.

Borris · 22 Feb 2006 at 15:30

DRZ said:
£3bn in charges - http://news.bbc.co.uk/1/hi/business/3621002.stm

Second hand statistices - I would be interested to see the Which report.

I'm having trouble finding references to charges in any UK bank's end of year filings (RBS, HSBC so far, and they are the biggest).

DRZ said:
Woah woah woah - Pentalty clauses in contracts are NOT enforceable under UK law.

In all fairness, that's op ed from a barrister - are there any cases relating specifically to bank charges?

callmeBadger said:
eventually as a gesture of goodwill they waived the charges

Never accept a gesture of goodwill, or at least don't let them note it down as one, or they might stop waiving charges.

I prefer to have charges waived, and then use that as a precedent for further waiving of charges.

Similarly, if they waive half the fees, I have them waive the other half - by waiving anything they can no longer hide behind "computer says no" as an excuse.