Distance selling regs

[JonathanRyan]

Anybody know chapter and verse on these? I've read some "explanations" on web sites but I can't tell if I'm covered or not.

Scenario: I went to a running show. It was at a race course and there were lots of stalls. There was a big Mizuno stall there selling kit and I bought a top off them. It turns out that the firm actually doing the selling was a sports shop in Brighton (a long way from the race course). Long story short: I've worn the top once and I hate it. There are issues with it that you couldn't really determine unless you wore it for running. Mizuno are being somewhat unhelpful.

Am I right that because the retailer was operating somewhere that wasn't their premises that the new DSR comes into effect and I'm covered for a refund? Does it make a difference that the shirt has been worn once?

Is it 14 days now? With all the messing about with Mizuno we've run over 7 days but not 14 days yet.

 

[srichards]

Nope. a) you've worn it b) it wasn't at a distance c) you've changed your mind so it is down to the returns/exchange policy of where you bought it from. They may offer a goodwill exchange.

You may however have rights under SOGA if the issues would make the top not fit for purpose or not of satisfactory quality.

CAB Consumer direct helpline is the best place to start.

I can't see how the DSR would apply if you had your mitts on the product before you bought it.

 

[JonathanRyan]

I can't see how the DSR would apply if you had your mitts on the product before you bought it.

I had a vague idea that because they had rolled up the old DSR and the doorstep contract thing that I might have a chance.

For example,

The new Regulations also apply to off-premises sales where the buyer and seller are in the same physical location but the location isn’t the business premises of the seller.

Read more: http://guruinabottle.brandrepublic....ns-take-effect-on-13-june-2014/#ixzz3KkTLP5AU
Follow us: @brandrepublic on Twitter

 

[-Rob-]

I don't see how your purchase has anything to do with distance selling regulations. You bought the top in a shop and left the shop with your goods. As said above as you've worn the top and just changed your mind about liking it I'd say you'd be stuck with it unless the shop in Brighton are nice enough to allow you to return it for a refund.

 

[srichards]

Once it has been 'used' the item is much harder to return under the DSR and there is still a lot of argument over how much 'use' you give something before you lose the right of return or you have a partial refund only. As it is a running top and you've potentially sweated like a builder's bum crack in it then I can't see how you can return it for a full refund. The seller would have the right to deduct an amount for use if the item isn't completely saleable.

SOGA route is the one you want if it doesn't work as described or demonstrated.

 

[JonathanRyan]

I don't see how your purchase has anything to do with distance selling regulations. You bought the top in a shop and left the shop with your goods.

Because it wasn't in a shop. I'm finding vague references over legal websites that seem to say if a seller has made "an excursion" then DSR applies. Then there are complicated arguments about whether a trade show is an excursion or not. (FWIW I believe the DSR applies if a photographer signs a contract at the client's house or at a wedding fair for the simple reason that the doorstep contract laws were replaced by the DSR2013. I can't find anything that explains why a contract would be covered but physical goods aren't.)

My view is that the top is generically faulty - it doesn't work in the way that the manufacturer claims and the demonstration given was misleading. As such I should have a claim under SOGA but it's really hard and time consuming to prove that. The reason I would prefer to use the DSR is that under most circumstances they can't argue about a refund.

 

[JonathanRyan]

The seller would have the right to deduct an amount for use if the item isn't completely saleable.

Yeah I guess that for the sake of a quiet life I'd be happy to discuss a partial refund. At the moment the manufacturer is suggesting I spend more money with them in the hope that it will make the first product work. I'm not really that keen to do that.

 

[big soft moose]

did you pay with a credit card ? if so your CC company can take a lot of the pain out of proving not fit for purpose , as the manufacturer tends to role over rather than mess with them.

Also whats up with the top ? Ive always found mizuno tops to be pretty comfy.

 

[viv1969]

To be fair, since you've worn it (more than a quick "try on"), then unless the garment is falling apart, you've no right to return at all.

 

[JonathanRyan]

did you pay with a credit card ? if so your CC company can take a lot of the pain out of proving not fit for purpose , as the manufacturer tends to role over rather than mess with them.

That's a good point. My concern is that the clock is ticking. If I have a claim under DSR then that will be by far the easiest, but it's been 9 days of Mizuno customer support kicking emails around. If I have a DSR claim I need to do it soon. If I try approaching my credit card company that will run the clock down.

Also whats up with the top ? Ive always found mizuno tops to be pretty comfy.

It's one of their new magic fibres. It's supposed to react with moisture (e.g. sweat) and generate heat to keep you warm on cold days. The demo fibre they had there was very impressive but there's a tiny note that I couldn't see until I got home that basically says "this demo is a lie". It doesn't generate heat and is actually pretty unpleasant to wear. Most noticeably when you stop and when it should be generating lots of heat it gets cold and clammy faster than say cotton. But of course I couldn't know that until I'd worn it for a run on a cold day.

 

[big soft moose]

i think DSR is going to be a dead end - as ruth says you've worn it now

however SOGA is still an option if it doesnt do what it was advertised to do , because as you say you'd have to use it to discover that it doesnt work. I'd forget DSR and ask he CC company to pursue a SOGa claim (or to refund you and then take it up with the manufacturer)

 

[OldCarlos]

CC company AND Trading Standards, who might also be interested if it doesn't actually do what they claim.

 

[JonathanRyan]

You're probably right. I initially fondly imagined Mizuno would be really helpful but sadly not. Mind you, the more I look at the DSR, the murkier stuff gets.

Here's a bit from an article discussing the government's guidance on the act, especially relating to "intimate garments".

It acknowledges that hygiene concerns may prevent the reselling of such goods; but that, it seems, is the seller's tough luck. The Distance Selling Regulations "do not link cancellation rights with a supplier's ability to resell items as new," according to the guidance.

 

[srichards]

Wet stuff cools faster than cold. You need something that wicks away the moisture as quickly as possible. I'm surprised your BS detector didn't go off when watching the demo as it is clearly a load of rubbish. What could react with sweat to make heat exactly? Sounds like a potential chemistry disaster if it did work. If there was really a material that made heat when you added water then we'd be heating homes with it when it rained

If there are adverts for it that say it does something and it doesn't then report it to the ASA as well.

 

[JonathanRyan]

I'm surprised your BS detector didn't go off when watching the demo as it is clearly a load of rubbish. What could react with sweat to make heat exactly?

The demo consisted of placing a piece of the "raw material" in your hand and then pouring water on it. It sounds bizarre but it really did work. Just to make sure I (a) drank some of the "water" and (b) brought one of the test kits home and showed my wife that it worked several times. There's a small disclaimer written on the inside of the kit that the test fabric contains a lot more of the magic beans than the actual tops otherwise you'd get too hot

From a small firm just off the boat from China I would have laughed and walked away, but this is Mizuno. You can critique the science here http://www.mizuno.com/technology/breath-thermo/

 

[big soft moose]

they call it breath thermo http://www.thegearcaster.com/2012/03/sweat-to-stay-warm-in-the-cold.html sounds like a bunch of aged shoe makers to me as the heat from friction at a molecular level would be negligible anyway.

Plus how do water molecules form a hydrogen bond with other fabrics anyway - hydrogen atoms only make a single bond and in H20 both H+ atoms are bonded to the O atom, so theres no spare to make a bond to the fabric - plus water doesnt have a positive charge .. its neutral.

so imo the science explantation given there desnt add up - plus even if it does work somehow (such as by being a decent insulator even when wet) it doesnt appeal to me for running as staying warm isnt a problem , i usually wind up sweating like a politician at an expenses hearing even in the cold ... its more staying cool which i struggle with

Edit: Jon types faster than me

 

[OldCarlos]

Mizumo say; `Breath Thermo is a remarkable heat-generating fabric with a thermal insulation mechanism that absorbs body moisture and then uses it to generate heat.`
Not sure whether that claim is correct, or maybe just a play on plain old science fact.....but imho it certainly is misleading.

 

[ecoleman]

DSR or Consumer Contracts Regulations 2013 as they are now known will not apply here. You were able to inspect the goods at the place you purchased them from and make up your mind based on that. The CCR is really for people that are unable to inspect the goods before making a purchase.

However, you may have a claim under the sale of goods act which states that goods much be fit for purpose, as described and of satisfactory quality.
You could argue that the product is not as described.

 

[JonathanRyan]

DSR or Consumer Contracts Regulations 2013 as they are now known will not apply here. You were able to inspect the goods at the place you purchased them from and make up your mind based on that. The CCR is really for people that are unable to inspect the goods before making a purchase.

Finally (whilst waiting for Loxley's servers) found section 29

29. (1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);

(b)regulation 34(9) (where value of goods diminished by consumer handling);

(c)regulation 35(5) (where goods returned by consumer);

(d)regulation 36(4) (where consumer requests early supply of service).

(2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31.

(3) Paragraph (1) does not affect the consumer’s right to withdraw an offer made by the consumer to enter into a distance or off-premises contract, at any time before the contract is entered into, without giving any reason and without incurring any liability.

There's a definition of an off-premises contract that says basically it can be when we are both physically present in the same place but that it's not the vendor's sales premises.

So I would have been covered if I hadn't worn it. b****r.

Actually, regulation 34(9) just says that if I have handled it more than I need to to establish functioning then the seller can withhold a portion of the money as compensation.

Really, we have some kick ass consumer laws now.

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

 

[Dave *]

Finally (whilst waiting for Loxley's servers) found section 29



There's a definition of an off-premises contract that says basically it can be when we are both physically present in the same place but that it's not the vendor's sales premises.

So I would have been covered if I hadn't worn it. b****r.

Actually, regulation 34(9) just says that if I have handled it more than I need to to establish functioning then the seller can withhold a portion of the money as compensation.

Really, we have some kick ass consumer laws now.

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

You are still misunderstanding the regs, for the purposes of your sale the show stall was the sales premises of the retailer. It was the place at which they were doing business. They don't mean it has to be the registered premises of the business, just a retail premises.

You went to the stall, examined the goods and bought face to face, no CCR protection follows.

 

[JonathanRyan]

You are still misunderstanding the regs, for the purposes of your sale the show stall was the sales premises of the retailer. It was the place at which they were doing business. They don't mean it has to be the registered premises of the business, just a retail premises.

I honestly don't understand why you would assume that. Do you have a source to back this up?

The reason I ask is that a trade show is very different IMO from a shop. I could for example choose to "cool off" by going home and coming back to the shop the next day. A temporary retail environment, not so much.

Really, it's exactly the same thing as signing a photography contract at a wedding fair.

 

[Bernie174]

I honestly don't understand why you would assume that. Do you have a source to back this up?

Have a read of this. Page 6 answers your question.

https://www.gov.uk/government/uploa...-additional-payments-regulations-guidance.pdf

I sell from a regular pitch at a Saturday market. Am I selling off-premises?
2. No. Off premises contracts are concluded at places which are not the business premises of the trader. Business premises includes movable premises such as market stalls, provided you carry on your business there on a usual basis.

So it appears you do not fall under the DSR.

The sale of goods act though? Different matter. But you need to contact Trading Standards. Although if you mention to the company that you brought it from that you are going to do so first, that may bring about a change of heart.

 

[Dave *]

I honestly don't understand why you would assume that. Do you have a source to back this up?

The reason I ask is that a trade show is very different IMO from a shop. I could for example choose to "cool off" by going home and coming back to the shop the next day. A temporary retail environment, not so much.

Really, it's exactly the same thing as signing a photography contract at a wedding fair.

Bernies speedy fingers beat me to it. The link is in his post.

 

[HuntingMartians]

they call it breath thermo http://www.thegearcaster.com/2012/03/sweat-to-stay-warm-in-the-cold.html

Plus how do water molecules form a hydrogen bond with other fabrics anyway - hydrogen atoms only make a single bond and in H20 both H+ atoms are bonded to the O atom, so theres no spare to make a bond to the fabric - plus water doesnt have a positive charge .. its neutral.

Water molecules create hydrogen bonds all the time. This is why ice floats. If water didn't do hydrogen bonds life would be very different.

 

[big soft moose]

good point well made - this is what i get for trying to remember rather than using google (seems its not a bond at all but a strong dipole to dipole attraction)

however i'm still sceptical that water is creating a hyrdrogen bond when it absorbed by a cotton tee shirt , as theres no particular reason why cotton would be strongly electronegative - surely when water is absorbed by a cotton or other fabric it is more to do with the wicking effect and open porosity/ capilary effect etc

 

[ecoleman]

You are still misunderstanding the regs, for the purposes of your sale the show stall was the sales premises of the retailer. It was the place at which they were doing business. They don't mean it has to be the registered premises of the business, just a retail premises.

You went to the stall, examined the goods and bought face to face, no CCR protection follows.

I agree with this. What about a market trader. Would you expect CCR to apply here to?

I think you will find their definition of off premises is where a seller, tradesman, photographer comes to you home or place of business and of course websites, catalog etc. where the goods can not be examined prior to purchase.

Off site trading aside, you have worn the item, so CCR would not apply anyway.

 

[JonathanRyan]

I agree with this. What about a market trader. Would you expect CCR to apply here to?

No I wouldn't. Because the market is their "usual" place of business. To quote from the quote above and adding a little bold

Business premises includes movable premises such as market stalls, provided you carry on your business there on a usual basis.

So somebody going to one market every Monday, another every Tuesday etc has several "usual" places of business. You'll note that the FAQ question talks about a regular pitch at a market.

A shop that opens 7 days a week in Brighton that decides one day to pack some of their stuff up and drive it to a conference suite at Sandown Park for 2 days only isn't, IMO, carrying on their business there "on a usual basis".

Off site trading aside, you have worn the item, so CCR would not apply anyway.

Down at the bottom of the FAQ it talks about a toaster. It says that it is reasonable for a purchaser to use the toaster to toast bread because without doing that, they are unable to ascertain if it works to their satisfaction. Mizuno say that the top reacts with sweat when you exercise. It seems to me impossible to verify that claim without wearing the top for exercise.

The problem is that all these various interpretations seem fair and reasonable - TBH I'm surprised if the law lets me return a worn shirt simply because it wasn't in a regular shop. But we have some surprising laws in the UK and I can't really see why the definitions in the act don't apply.

Here is the actual definition of business premises

“business premises” in relation to a trader means—

(a)
any immovable retail premises where the activity of the trader is carried out on a permanent basis, or

(b)
any movable retail premises where the activity of the trader is carried out on a usual basis;

Let's see what happens when Mizuno finally return my calls.

 

[ecoleman]

Not sure where you read about the toaster so atop, but the CCR allow you to inspect the goods in the same way as you would be able to in a shop.

Ie it is reasonable that you would open the packaging to handle the goods as a shop would usually have one out on display. Not sure if Currys would be too happy with you taking in a couple of slices and marmalade to see if a toaster to browns your toast enough.

Nobody is saying you don't have a case, but CCR is route you need to take. As the goods do not do as advertised, they the SOGA applies.

Found this

A customer has changed their mind and returned a toaster bought online. The box is intact but there are crumbs in the toaster. Can I deduct any money from the refund?
17. The consumer should be permitted to inspect the toaster in the same way that they might in a shop to ensure it is as described. Money should not therefore be deducted if it is reasonable for the consumer to remove the packaging to inspect the item. However, using the toaster goes beyond what is needed to ascertain the nature of the toaster, and is not something the consumer would do in a shop. Money can therefore be deducted to reflect diminished value. The consumer need not ‘test’ the toaster since, if the toaster proves to be faulty the consumer has rights under other legislation.

Found here
https://www.gov.uk/government/uploa...-additional-payments-regulations-guidance.pdf

 

[JonathanRyan]

You know I completely misread that example.

As long as it's easy I'd rather go "not as advertised" because that will effectively cost Mizuno not the retailer. But if they kick up hard I may try the retailer route. As I mentioned above at this point I'm OK if they want to deduct (say) 10% for wearing it.

 

[JonathanRyan]

OK - once you get to speak to the right people, Mizuno are a pretty decent company. I have a meeting with the area sales manager tomorrow to sort this out. Yes, I was surprised too.

 

[viv1969]

If you're going to go along the route of claiming that the fabric technology is a load of old tosh, then as the retailer I'd point you in the direction of Mizuno, and as Mizuno I'd politely say "Bring it on".
Good luck though

Edit....result. I suspect the Mizuno guy will make it all go away for you :-D

 

[JonathanRyan]

If you're going to go along the route of claiming that the fabric technology is a load of old tosh, then as the retailer I'd point you in the direction of Mizuno, and as Mizuno I'd politely say "Bring it on".

Yes, that's why I really don't want to get into a SOGA fight. The retailer is responsible for making sure it "works" but really, due diligence is to believe the clever scientists at Mizuno. And Mizuno will have a stack of people with PhDs that say it works.

But like I say, from a non-name Chinese chancer I wouldn't have bought it. I'm glad that they are willing to talk because that's what I'd expect of a decent firm.

 

[big soft moose]

If you're going to go along the route of claiming that the fabric technology is a load of old tosh, then as the retailer I'd point you in the direction of Mizuno, and as Mizuno I'd politely say "Bring it on".
Good luck though

Edit....result. I suspect the Mizuno guy will make it all go away for you :-D

This is why you should go to your credit card company (if you don't get satisfaction from the rep tommorow) - Mizuno won't say 'bring it on' to visa or amex etc. Its not in Mizuno's interests to have a f*****g great lawsuit about their wonderous new technology being a load of old tosh regardless of whether they win or not.

They are far more likely to say "we are awfully sorry that mr Ryan wasnt completely satisfied, please have a refund and lets forget the issue" if they are dealing with another large corporate rather than a tiny insignificant consumer

 

[overbez]

How much was this top???

Has to be £100 plus for the CC company to get involved.

 

[JonathanRyan]

How much was this top???

Has to be £100 plus for the CC company to get involved.

Good point. Though I believe they can get involved for smaller amounts if they feel like it.

It was 50 quid.

 

[Spuff]

Just a little bit of background info (if you haven't seen it already) so you can baffle the rep if needs be...e.g. "my old mate Hiroshi said if I ever had any problems with Mizuno stuff..."

Interesting that it's difficult to manufacture "Breath Thermo is a joint development with Toyobo and a Japanese spinner. The fibre and resultant yarns have proved extremely difficult to process and Mizuno and its partners have spent some years perfecting the technology."

 

[Bernie174]

Jonathan

I really think you are on a hiding to nothing with the DSR.
Like all law it's passed by parliament, and then the lawyers get hold of it. From that point onwards it can be argued what each part means, especially when each sentence or sometimes words don't have a meaning written into the act.
So while I can see what you are saying, the only way, if the retailer says sod off, that you can resolve it is to see a solicitor, pay him a lot of money to take it to court, and if nessesary as far as the High Court for a case stated. If you do that you are going to need deep pockets.

So you really have very few choices.

1. Argue your point robustly, and drop hints of solicitors etc.
2. Go and see a solicitor, although you might want to check your house or car insurance, the often have free legal advice and sometimes representation included in them.
3. Speak to Trading Standards. They can advise you on SOGA and DSR's. They might take action if you can convince them, they might not.
4. Forget about it.

Whichever you do, you need proper advice, while I can read and interpret law, I wouldn't and can't advice on the basis of it, with something this complicated and with the DSR relatively new, and therefore hasn't been tested as much as older law will have been, you need an expert.

 

[viv1969]

Jonathan

I really think you are on a hiding to nothing with the DSR.
Like all law it's passed by parliament, and then the lawyers get hold of it. From that point onwards it can be argued what each part means, especially when each sentence or sometimes words don't have a meaning written into the act.
So while I can see what you are saying, the only way, if the retailer says sod off, that you can resolve it is to see a solicitor, pay him a lot of money to take it to court, and if nessesary as far as the High Court for a case stated. If you do that you are going to need deep pockets.

So you really have very few choices.

1. Argue your point robustly, and drop hints of solicitors etc.
2. Go and see a solicitor, although you might want to check your house or car insurance, the often have free legal advice and sometimes representation included in them.
3. Speak to Trading Standards. They can advise you on SOGA and DSR's. They might take action if you can convince them, they might not.
4. Forget about it.

Whichever you do, you need proper advice, while I can read and interpret law, I wouldn't and can't advice on the basis of it, with something this complicated and with the DSR relatively new, and therefore hasn't been tested as much as older law will have been, you need an expert.

Did you read the whole thread?

 

[Nod]

At a guess, the manufacturer and retailer probably have Farcebook and t***ter presences...

 

[JonathanRyan]

Jonathan

I really think you are on a hiding to nothing with the DSR.
Like all law it's passed by parliament, and then the lawyers get hold of it. From that point onwards it can be argued what each part means, especially when each sentence or sometimes words don't have a meaning written into the act.
So while I can see what you are saying, the only way, if the retailer says sod off, that you can resolve it is to see a solicitor, pay him a lot of money to take it to court, and if nessesary as far as the High Court for a case stated. If you do that you are going to need deep pockets.

Sad, but true. "Somebody" needs to challenge this and make a precedent. But it won't be me because, court fees

Meeting with Mizuno was a little odd. It got a little awkward when they made a mistake over the price I'd paid and got more heated than you might expect. But I got a full refund as a gift voucher to spend at my local running shop, so most people won.