Returns and refunds

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Hi all

Another sharing of knowledge on UK law if that's ok.

I came across an item today where the seller had, rather rudely, added that:

"Returns accepted when paid through PayPal only if not as described [sic]. Items that are sold as seen or job lots are excluded. Full refund will be given when goods returned. Postage excluded. Please return recorded for your own safety."

And so on. Aside from a career in writing small-print for loan sharks, I think the customer service is way off here. But that's not why I'm writing. I'm actually going to comment on the illegality of this disclaimer.

This is my second review and again, I'm sorry, but this is for UK law only.

There are four main reasons why an item from e-Bay might be returned: 1) faulty/damaged/broken, 2) not as described, 3) buyer change of mind (due to error, finance, change of heart etc) and 4) mis-delivery by the post office.

1. If an item is delivered faulty/damaged/broken, and was not sold as such, the seller is legally bound to refund. They may well claim their loss from the Royal Mail after, but they CAN NOT pass on the cost to the buyer. (Of course, this doesn't apply if the buyer is clumsy and broke it themselves!)

Items can be sold as faulty, as long as their sale doesn't transcend obvious other laws such as Health & Safety, but must be clearly labelled as such. There is also some murky water here - the phrase "sold as seen" is not strictly enforceable by a seller as, technically, the buyer hasn't "seen" the item. In the most extreme case, a court would say that photo's of the item were placed by the seller and are, therefore, prejudicial and bias and the seller cannot truly have had the chance to impartially view the item to make an informed choice on its condition. Naturally, this is pushing it and, as with all other arguments put forward here, a healthy dose of common sense will go a long way.

The buyer should see the clearly displayed "faulty" warning and enter into detailed correspondence. This should clear up confusion but, again using our extreme "court case" scenario, a court would scrutinise any correspondence to ensure the seller was honest, did not mislead through omission and did not omit basic facts. If the seller is honest then the court would, quite rightly, revert to "caveat emptor"... let the buyer beware!

2) If an item and its description do not match, in theory the seller should, again, be obliged to make a full refund. However, this can be subjective. How much of a disparity can there be between description and item? Where is the line? The seller may call it dark orange and the buyer may call it brown but, especially if there's a picture, again its "caveat emptor". For items without pictures, the description will have to suffice.

Of course, a description can be described as misleading if it lies or omits certain information. I have seen fantastic descriptions across various categories which flaunt this aspect of Trading Standards and Advertising legislation - a beautiful 1940's telephone once, which had three paragraphs of description... and never once was the word, or concept, "reporoduction" used. It wasn't a 1940's telephone at all - it was a naff Noughties one... meaning a value difference of a couple of hundred pounds.

I followed the case and the seller "claimed" to be unaware it was a repro. However, although the seller could amply prove they weren't a phone expert, they could not justify their advert omitting the status of the phone (original vs repro). In other words, sellers, if you don't know you must say. Omitting the info will be viewed as misleading. In the phone case, this was justified in that the seller was convicted of fraud because they had priced the phone at the value of an original, not a repro, suggesting they knew the value of a 1940's phone, meaning they must have done some market research, which meant that they should have had ample opportunity to check the originality of the item!

3) Buyer change of mind. Unless you get a sympathetic seller, tough. Sorry but that's the way it is. For example, buying clothes and finding they don't fit is the buyer's problem: as long as the description accurately listed the sizes a court would state that the buyer should know their own measurements. Of course, should the size labelling in the clothing be incorrect, then this reverts back to 1) as the goods are deemed to be "faulty".

UPDATE! (Many thanks to UEACLEANER1, who pointed out my omission here):

"Hi, I just read your guide entitled Returns And Refunds, and under number 3 of the list of reasons why a buyer may wish to return an item, you state "Buyer change of mind. Unless you get a sympathetic seller, tough, but that's the way it is." This is true if the seller is a private seller, but if he is a business seller (and selling an item as a Buy It Now listing and not an auction) then the buyer is protected by the Distance Selling Regulations, which means they can return the item within a reasonable length of time without giving a reason, provided that the item is in the original condition."

4) Post office mis-delivery. This is when a) the address in incorrect, b) the address cannot be physically delivered to, c) a parcel notice has been left but not followed up on, d) the parcel is marked "return to sender".

a) If the address is incorrect, the fault lies with whomever made the mistake. If the buyer supplied the wrong address, it's the buyers fault. If the seller mis-wrote it, it's theirs. I mention this distinction because re-issue or refund may or may not require postage refunds also. If it is the seller's error, then they will have to stump up the postage again. If it's the buyer's, they can be reasonably expected to pay again to have the item redelivered.

b) If the address cannot be physically delivered to (i.e. no letter box or answer from the property) then, again, this is the buyer's fault - it is up to the buyer to ensure an item can be delivered somewhere.

c) If the parcel notice (the little red card that tells you that you need to go to the sorting office to get your parcel) is not followed up on then, again - buyer's fault. BE WARNED - different types of postage mean different holding times- the Royal Mail will only hold recorded delivery for 7 days max before returning.

d) If the parcel is marked "return to sender" by someone other than the buyer (i.e. via "addressee unknown" then it may have been mis-delivered. Refer to a) in terms of incorrect addresses. If neither are incorrect, then either someone in the property is having a laugh or the post office has delivered to the wrong home. Either way, their is no provability possible and, as the seller made no errors and acted correctly on the information the buyer provided, the cost of redelivery will fall to the buyer.

So, going back to our original advert. Let's pull it apart!

"Returns accepted when paid through PayPal only if not as described [sic]. Items that are sold as seen or job lots are excluded. Full refund will be given when goods returned. Postage excluded. Please return recorded for your own safety."

1: "Returns accepted when paid through Paypal only." No chance. This cannot be demanded by the seller - payment method is irrelevant. If the goods fall in to any of the above categories (faulty, bad description etc) then the seller is LEGALLY bound to refund. They may choose to refund by the same method as original payment, but they MUST refund. Note: this does not include commissions as those are incurred at the buyer's discretion - the seller must cover the item cost and postage, not the extra you may have paid for a banker's draft or postal orders - that's your look-out for not using PayPal or personal cheque.

2: "...only if not as described." I've put a [sic] in here as the grammar's not great and I'm not sure what the seller means. However, I'm assuming that they mean they will only accept returns if the reason for return is that the item is not as described. Again - no chance. If the item falls into the relevant category, the seller MUST refund.

3: "Items that are sold as seen or as job lots are excluded." Dodgy ground here. See 2) re: item descriptions. Furthermore, should something about the item come to light after purchase (i.e. the item contravenes Health & Safety law and this could not be ascertained from picture/description), whether it is sold as seen or a job lot is irrelevant. For example, a stuffed toy which has a metal spike inside. The seller may honestly claim that they didn't know, which is fair enough. However, they still sold it and whether it was a job lot, or faulty/sold as seen (assuming that the fault or "sold as seen" issue isn't the metal spike) the buyer has a right to return a dangerous item - metal spikes and children tend not to be a good mix. Furthermore, if "sold as seen" is a stuffed toy with a spike sticking out of it, then the seller has the legal obligation to describe an obvious issue. Whether it could be sold at all is questionable, but if it could then, as an obvious child's toy, the seller must CLEARLY state "not suitable for children."

Of course, this does not abrogate responsibility from the buyer - upon receipt it needs returning. Giving it to your kid, taking them to hospital and then trying to return it when you knew it was faulty will not wash. It's still up to the buyer to be a responsible adult!

4: Full refund once goods returned. I'm assuming the seller means "full refund when goods received back," in which case perfectly reasonable. Furthermore, as the seller has guessed with their "Please return recorded for your own safety," proof of postage is not proof of delivery. Send it recorded!

5: Postage excluded. Now just a minute. If the buyer has a clear case for returning the item, they are entitled to all of their costs. Not only are they entitled to their original postage, they are also entitled to claim the cost of returning the item! To withhold postage is, in the eyes of the law, viewable in two ways - fraud or theft. And, between you and me, what's the difference?! If you ever see "postage excluded" in a returns policy, tell the buyer - they may not realise, but it could be illegal.

Hope this helps!

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