Am I entitled to...

[shaithis]

make a retailer come and collect an item that was not as advertised?

I have been building a PC for someone who is on a ridiculously tight budget and went against my better judgement and agreed to order them a gfx card from "you know where".......it was blatantly advertised as PCI-Express.

So it arrives and its an AGP card......

Now, they have agreed to fully refund me but I do not see why I should waste my time queueing at the post office and then trying to reclaim the postage fees. They should just pick it up (which they say is "reserved for larger items")

Am I within my rights to demand this?

[Madafwo]

You're entitled to return the item without any inconvenience being caused to yourself and also you do not have to pay the postage fee's at all, even if they state they will refund you.

They will collect it, you just need to insist that it is collected.

[iceze]

Tell them you'll arrange a courier but they need to refund you the postage costs.

[shaithis]

Well, after a few emails overclockers.co.uk are still refusing to collect it and insist I must post it to them.

They send me completely the wrong item and then inconvenience me some more. I should have stood tough and refused to order it.

They really take poor customer service to a new level!!

[Jay]

I had the same issue with them and they did try and do me over on the postage. My refund did not include it and I had to chase them up a few times to get the postage costs back.

[shaithis]

"3.57 If the goods are faulty or do not comply with the contract, you will
have to pay for their return whatever the circumstances."

Just found the above which they are bound to by law. So trying once more, threatening them with me sending the package using a very high cost same-day courier

[finlay666]

Call them up, state your time is £50 per hour and that you will be charging them for your services to return the package and waiting at the post office, and payment must be made in advance for your service by cash only.

Failing that, tell them to arrange a courier at a time CONVENIENT FOR YOU, I cannot stress that enough, so normally a saturday say. Tell them they should pay for this in advance (tbh if they are refunding your cost anyway it will be cheaper for them to do it themselves)

[shaithis]

They only do customer service via a webform, only sales and tech support are contactable via telephone "supposedly"

Its about time their website got a wild-west make-over. Lots of spurs and quotes of "YEEE-HAA" would be quite fitting for these cowboys.

[Jay]

A quick search on this forum will show you that a few people find OcUK a bit poor.

I suppose you are just another person who will never use them again.

[shaithis]

I was aware of their reputation, they stung me about 7 years ago and I didn't want to use them again TBH......but as I was building this for someone else and they insisted, I really felt I had to do it, plus on every thread about overclockers there is always at least 1 person who absolutely swears by them. So, after a wrestle with my conscience (and my friend who I am building the machine for) I stupidly went for it.

Oh well, live and learn I guess

[Saracen]

I would say it depends what you mean by not "as advertised".

Assuming you act within the prescribed (by law, not by the retailer) period, you can use the Distance Selling Regs (also assuming you didn't buy in person, which your post suggests is the case) to cancel the contract.

Generally, if you just don't want the goods, the cost of returning them will be down to you. That implies that either you return them, or the retailer can collect, and then deduct the (direct) cost of doing so from your refund.

However, if the goods are such that you would have a right to cancel under any other law, such as the "as described" requirements of the Sale of Goods Act, then the clause that allows the retailer to make ANY deduction from your refund doesn't apply.

The logic is this - if you have been supplied goods that do not conform to contract, which is what is implied by being able to return them under your Sale of Goods Act rights, then the supplier is in breach of contract for doing so. Why should the buyer suffer the costs of returning goods when the supplier is the one that breached the contract? Essentially, the burden of the cost of rectification goes to wherever the fault lies.

One other thing the DSR makes clear. Once you've cancelled under the DSR, that refund must be made as soon as possible an "in any case" within 30 days. The DSR does NOT say that the seller must have received the goods back before issuing that refund. Once you've cancelled, that 30-days clock starts, regardless of arguments over who pays for return costs.

Does the fact that the goods are not "as described" give you that Sale of Goods Act non-conformity? I don't know, partly because I don't know how they didn't comply, and partly because, ultimately, only a court can decide that. But IF the description is sufficiently wrong as to constitute a breach of contract, then the cost of returning the goods, or collecting them, is down to the seller.

However, whether that theoretical position is such that you're prepared to make a stand and, if necessary, have a court argument over it is entirely another matter. Financially, it's not (IMHO) worth the hassle. As a matter of principle .... well, that's up to you.

[shaithis]

Its fairly clear-cut IMO.

The description of the item I ordered:

"**B Grade** HIS ATI Radeon HD 3650 512MB DDR2 TV-Out/Dual DVI/HDMI (PCI-Express) - Retail"

And they sent me an AGP card and say they don't have a like card to replace it and therefore were going to refund. Now, I fully understand that b-grade brings with it a few caveats but advertising and billing me with the description that it is PCI-Express and then sending an AGP card cannot be covered by any caveat, surely?

The way I see it, is that they have already inconvenienced me enough by making such a stupid and glaringly obvious mistake (at least to anyone with half a brain who works in the industry). It has caused me to waste time searching again with my friend for a replacement "within his budget", they wasted 2 days of the build time I had by sending me completely the wrong item and now want me to go and queue up at one of the busiest post offices in London in soaring temperatures because of their mistake.

To add insult to injury, each time I submit one of their webforms about it, all I get is a 2 line response of "I cannot arrange collection for this item. We will refund your postage costs once the RMa has been processed."

I think someone there needs to learn the difference between "cannot" and "will not" as well.

[Zhaoman]

Saracen explained it very well. You're protected by law so just play hardball with them until they give in. Threatening them with court action will usually be sufficient to make them take notice. A lot of retailers take advantage of consumers in this respect because they know that so many consumers don't know their rights.

[Saracen]

Its fairly clear-cut IMO.

The description of the item I ordered:

"**B Grade** HIS ATI Radeon HD 3650 512MB DDR2 TV-Out/Dual DVI/HDMI (PCI-Express) - Retail"

And they sent me an AGP card and say they don't have a like card to replace it and therefore were going to refund. Now, I fully understand that b-grade brings with it a few caveats but advertising and billing me with the description that it is PCI-Express and then sending an AGP card cannot be covered by any caveat, surely?

The way I see it, is that they have already inconvenienced me enough by making such a stupid and glaringly obvious mistake (at least to anyone with half a brain who works in the industry). It has caused me to waste time searching again with my friend for a replacement "within his budget", they wasted 2 days of the build time I had by sending me completely the wrong item and now want me to go and queue up at one of the busiest post offices in London in soaring temperatures because of their mistake.

To add insult to injury, each time I submit one of their webforms about it, all I get is a 2 line response of "I cannot arrange collection for this item. We will refund your postage costs once the RMa has been processed."

I think someone there needs to learn the difference between "cannot" and "will not" as well.

Well, subject to the usual provision that I'm not a lawyer, I'd say you've got them stone cold on that one, and on at least two grounds.

The first ground, in my opinion, is that the goods supplied aren't fit for purpose. If you order goods for a PCI-E slot, then an AGP card won't work. This is not that there's anything wrong with the card supplied - it's that it won't do what you bought it for. It is a basic provision of the Sale of Goods Act that goods supplied to a consumer are not only of satisfactory quality, but are fit for purpose. That purpose can be either explicit or implicit. An explicit purpose is where you stipulate what you want to do with the goods. If the supplier then sells them, then they are in breach of contract if they don't do what you said you wanted them to do, regardless of whether most people would want to do that with that item.

An implicit purpose is one inherent in the nature of the goods. Personally (and IANAL, remember) I think it's implicit in the nature of the goods that if you're buying a PCI-E card it's for a PCI-E slot. If the supplier then substitutes an AGP card, it;s not fit for purpose (IMHO) under the Sale of Goods Act.

Now, on to the Distance Selling Regs. Presumbalym you have notified them of your intention to cancel? And done it in some "durable form" i.e., unless the contract says you can, NOT BY PHONE?

If so, there's two approaches, and this is why I think they've not got a leg to stand on.

1) If you cancel under the DSR, and have a right to reject goods under other term of the contract, including an implied term "by virtue of any enactment".

The way the Sale of Goods Act works is that it embeds certain mandatory terms in any relevant contract, those including the provisions for "as described", fitness for purpose and satisfactory quality. Those provisions are, therefore, contract terms in any consumer contract, by virtue of being enacted by the Sale of Goods Act. Far from me to say I know what was in the minds of legislations when they wrote the DSR, but it seems eminently likely that the Sale of Goods Act rights was exactly what they had in mind, though they phrased in so as to not limit it to that.

Then we look at the DSR provisions for your right to recover monies paid. Section 14 covers this, and though there's a few extra wrinkles, the basic situation is that any supplier can either require the consumer to return goods as part of the contract, or can deduct the direct cost of collection if they collect from the consumer, provided they stipulate that in their T&Cs. I doubt any sensible retailer fails to stipulate that. That is also the ONLY deduction they are allowed to make from the refund. The DSR is very clear, the effect of the cancellation if to make it as if the contract had not existed, and if it had not existed, no monies would have been due. So with that sole exception, you get a refund. But, there's an exception to the supplier being able to make that deduction, and it's in s.14 (6).

s14 covers the right to a refund. s14(5) covers the ability to deduct the cost of collecting goods if the consumer is obliged to return them and doesn't, requiring the supplier to collect. But s.14(6) stipulates when s.14(5) doesn't apply, i.e. no right to make that deduction. It says :-

Distance Selling Regs s14.(6)

(6) Paragraph (5) shall not apply where -

(a) the consumer cancels in circumstances where he has a right to reject the goods under a terms of the contract, including a term inplied by virtue of any enactment, or ....

So, so far, we have a situation where either the supplier has misdescribed the goods, in which case it's a Sale of Goods Act contract breach and you can reject under the DSR and s14(6) precluded the right to charge for collection, or it's a substitution, in which case you can reject the substitution and the above provision makes clear that the supplier MUST have told you that if you do so, they bear the cost of returning the goods.

And, in any event, it seems to me that the goods are clearly not fit for the implied purpose of wanting PCI-E compatible goods because that's what you ordered, so in addition to either of the above situations, they're not fit for purpose, so if you reject, 14(6) applies again, because of that "by virtue of any enactment" provision.

So, that (in my non-lawyer opinion) pretty much nails down that the supplier pays the cost of either you returning the goods, or of them collecting them, however you look at this mess. So do you have to return them? Do you have to do the work?

That's not quite so clear cut, but my argument would be no.

The DSR does stipulate what duties the consumer has in relation to the goods, if he cancels. Prior to cancellation, you must retain possession of the goods, and "take reasonable care of them". It does NOT say you must not open them, or try them. It;s up to the court to determine if "take reasonable care" means that you can't open them or not, despite what some retailer will try to tell you. The DTI has made it clear, it written guidance, that it considers that "reasonable care" includes at the least, the ability to make the type of inspection you could reasonably have made had you bought the goods in the shop. Whether that includes opening to inspect ... well, some shops will let you and others won't. Typically, the more expensive and complies the goods, the more likely a consumer would demand that he see them, or wouldn't buy. The retailer can define what it means by "reasonable care", but if it tries to take that definition too far, then it won't apply anyway. For instance, the DTI stipulate that it would be reasonable to require consumers not to remove hygiene seals or to restrict trying shoes on to doing so indoors. But it also stipulates that such terms imposed byt he retailer must not restrict the consumer's right to "reasonably inspect and assess" the product.

But that's before cancellation. After cancellation, you are require to :-

DSR s.17(3)

On cancellation, the consumer shall be under a duty to restore goods to the supplier in accordance with this regulation, and in the meantime to retain possession of the goods and to take reasonable care of them.

The DTI has expressed car written guidance to business on this point too.

The consumer IS under an obligation to "restore" the goods, but NOT to have to send them back. It's quite clear from the DSR that it envisages either the consumer sending the goods back (and at the supplier's expense in the circumstances outlined) or making them available for collection, at which point the retailer can subtract the direct cost of doing so, subject to the exceptions I've outlined.

But there's another wrinkle. The statutory requirement on the retailer to make that refund in the event of cancellation, and to do so "within 30 days" is unconditional. Providing the contract is of a type that the DSR covers, and providing it doesn't fall into one of the fairly limited range of goods or services that are exempt from the right to cancel, and providing you notify the supplier of the cancellation in a durable form and within the time limits, that rfund within 30 days is unconditional. It is NOT dependent on them getting the goods back in good condition, and it is NOT dependent on them being unopened or undamaged, and it is NOT dependent on them even EVER getting the goods back.

Lets run that past you again. The refund, providing you're eligible for it, MUST be within 30 days, come hell or high water. And they're breaking the law if it doesn't arrive within that time. Period.

Of course, if you don't take reasonable care, or don't "restore" the goods, etc, you have then broken your statutory duty and the retailer can sue you. But what they can't do is hold up any part of that refund, except the very specific direct cost of collecting goods if and only if they are entitled under s.14(5) to make that deduction.


2) The supplier MUST have notified you, prior to the conclusion of the contract, of certain mandatory information. See section 7. Part of that (para's b and c) relates to substitution of goods, and what happens if those substituted goods are not acceptable.

This says

..... the supplier shall :-

....

(b) inform the consumer if he proposes, in the event of goods or services ordered by the consumer being unavailable, to provide substitute goods or services (as the case may be) of equivalent quality and price; and

(c) inform the consumer that the cost of returning any such substitute goods to the supplier in the even of cancellation by the consumer would be met by the supplier.

So, I'd say, clearly, the cost of getting the goods back is down to the retailer in your situation, and they can't require you to organise the return of the goods. But it might be simpler to do so. Just be clear that it's at their cost. If they don't like doing this, they shouldn't substitute totally inappropriate goods, should they?



Anyway, time has caught up with me. I haven't had time to proof-read through that, so I hope it makes sense.




Note: Not all of the above relates to business buyers. I'm assuming you bought this as a consumer. If not, the situation will be different.