Play.com breaching the DSR?

[finlay666]

Seems like it to me, was reading through the DSR about inspection of goods and what can/cannot be inspected (sealed software etc I understand) so things like TVs are accepted, however with Play.com their returns policy states:

http://www.play.com/HOME/HOME/6-/Help.html?page=ret
You may return any unopened item within 7 days of receiving it, for a full refund. We will refund your card once we have received and processed the item.

We will only refund delivery costs if the return is a result of our error.
We cannot refund or exchange an opened item unless it is faulty, or if the item was sent to you through our error.

DSR:
After you receive the goods you have 7 working days (beginning the day after you receive the goods) to inspect the goods and, if they are not suitable, return the goods for a full refund.

Last time I checked you had to remove stuff from it's packaging normally to inspect it.

Also:

You may cancel your order at any time prior to your order being processed by clicking on the ‘cancel’ link next to the product ordered on your account page on the website. We can also accept cancellations by telephoning 0845 800 1020 during normal office hours. You may also withdraw from the contract at any time after the product has been dispatched and you have received our email confirming your order but no later than 7 working days after the day after you receive the product by:
sending the notice of cancellation by email to terms@play.com ensuring that you quote your name, address and order reference number; or
where you have already received the goods, returning the goods to Play.com unopened together with the original invoice. Play.com will refund you the purchase price of the goods. Where appropriate Play.com shall refund any additional customs duties borne by you on receipt of the relevant customs receipt.
Once Play.com receive notification from you that you wish to withdraw from the contract (in accordance with these terms), any sum debited to Play.com from your credit card in relation to your order will be re-credited to that credit card account as soon as possible and in any event within 30 days of your order provided that the goods you wish to return are received by Play.com in the condition that they were in when delivered to you. You will be liable for any charges incurred in returning the goods to Play.com.
Play.com reserves the right to make a 15% restocking charge for any goods which are not returned in mint condition or to refuse to accept such goods, at its sole discretion. Play.com also reserves the right to make a charge for collecting goods from your premises in circumstances where they are not defective but you have cancelled your order. Your statutory rights are not affected.

I also thought restocking fees were illegal so if they were returned open and they charged you you could claim against them, right?

[father smurf]

Does DSR cover Jersey?

[kalniel]

One exception to cancellation of contract in the 2000 act is:

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

(edit: oops, wrong charge - can't see where they let them charge 'restocking', no)


However I guess you also won't have accepted the contract until you agree to the EULA if you are buying a license to use a game rather than the game outright.

2000 act: http://www.opsi.gov.uk/si/si2000/20002334.htm

2005 amendments (mostly re-wordings): http://www.opsi.gov.uk/si/si2005/20050689.htm

[Saracen]

Are they breaching the DSR? I doubt it. Firstly, aren't they Channel Islands based? If so, I'd have thought that their T&Cs were based on Channels Islands jurisdiction, and legislation. I haven't checked, but I'd have thought so.

But even if they weren't Channel Islands, I'd expect to find a clause in their T&Cs somewhere that says something like "Nothing in this terms restricts your statutory rights."

From the quote you give, it looks to me like they could argue that what they're explaining is THEIR policy, not the DSR. And if so, they can offer any policy that like (providing it doesn't comply with other relevant legislation) in terms of their own returns policy, and the DSR would operate on top of that, if indeed, it operates at all.

What they can't do, if they come under UK jurisdiction, is restrict the rights you have by law. If they try, it would not have any effect in a court, and might be an offence in it's own right, depending on what they try to restrict.

Taking the question at face value, assuming they come under UK jurisdiction and that they are referring to the DSR, then the DSR does NOT contain any such provision about goods being unopened. It just says that the buyer must take "reasonable care" of them.

The seller can attempt to define what they consider "reasonable care" to mean, and it might have some effect, providing it doesn't conflict with what a court would view a buyer as being reasonably entitled to expect.

This came up in another thread a few days ago. The intent of the law, according to the DTI/BERR/Trading Standards is that users would be given the ability to inspect goods, much to the same level that they would in a shop. That much is in writing guidance that the relevant government departments issue to sellers.

There is also legislation providing constraint on how reasonable contract clauses between sellers and consumers can be. Sellers have to be pretty careful to walk a line between conditions that protect them in a way that is both reasonable and sufficiently narrowly framed to not be unreasonable on the consumer.

In other words, the balance is not entirely on the consumer always being right, though from some (not this one) forum threads, you'd think they think they are. But, though business sellers can protect themselves within reason, they need to be careful not to frame such protections so widely or vaguely as to be unreasonable. If they do, then such clauses are likely to be, at best, unenforceable.

And one last point. as was pointed out by another poster in that recent thread, the cancellation period, which is often referred to as 7 (working) days, is actually a bit more complex than that. It can be less than that, specifically for services where the consumer has authorised the serive to commence, and the DSR doesn't apply to absolutely all contracts, and not all types of goods can be sent back or the contract cancelled. Most can, but not all.

But even excluding all those, the seller has to notify the consumer, in a prescribed way, of a series of bits of information, including their DSR cancellation rights. If they don't do it before the contract is formed, then that (working) 7 days starts when they do eventually comply and notify, or if they never do, then it ;lasts for 3 months and 7 (working) days stating the day after delivery of the goods.

Another common stunt some shops try to pull is that you have to return the goods within 7 (working) days. Rubbish. You merely have to cancel (usually in a durable form, i.e. not by phone) unless phone cancellation was mutually agreed. Once you've cancelled, and assuming the goods or contract isn't one of the exceptions, you're entitled to your refund as soon as practical and in any event within 30 days. That means, you get the refund "in any event", and it;s NOT contingent even on you EVER returning the goods.

Of course, if you don't return the goods (or permit and cooperate with collection), it's almost certain to put you in breach of contract, and thus give the seller an ability to pursue you though the courts for the value of the goods. It;s not a free ride. But the refund isn't dependent on the return of the goods.

There are quite a few companies that try on all sorts of things, either because they think they'll get away with it (and, usually, probably will), or perhaps because they simply don't know any better.

Oh, and finally (and I mean it this time), the DSR itself doesn't actually specify a lot of this. Government guidance does, but of course, while persuasive and certainly very suggestive, that isn't law. Courts don't always do as governments want or expect, let alone intended. But the intent of the legislation is pretty clear from that guidance, seeing as the departments writing the guidance were the ones pushing for and constructing the framework for the legislation in the first place.

But ultimately, if the legislation isn't specific (as it was in that "in any event" remark, then it's down to interpretation, and it's the courts (and perhaps appeals courts) interpretation that actually matters, not government departments.

[father smurf]

Does DSR cover Jersey?

Firstly, aren't they Channel Islands based? If so, I'd have thought that their T&Cs were based on Channels Islands jurisdiction, and legislation. I haven't checked, but I'd have thought so.

That's what I thought.

[SmileyUK]

does this mean your plan to steal the banjo game code and then return it is going to fail?

[finlay666]

does this mean your plan to steal the banjo game code and then return it is going to fail?

I don't mind if it doesn't tbh, would just mean I'd buy the points card at cost price from work, I already had it pre-ordered though.

And I have read the DSR includes Channel Islands....I'll ask them when I cancel my order (too late now)