Internet Retailer Refusing Refund

[backinaction]

Could anyone give me advice on how the law designates a consumer purchase over a business purchase?

 

I bought a video capture device from a company called Siren Technology based in Manchester. The order was made on the phone using my personal bank card - Visa Debit. The person who took the order asked if there was a business name I wanted on the invoice. There was as I wanted the goods sent to the company I work for.

 

The goods turned out to be totally inadequate and I returned them to the company asking for a full refund. They flatly refused claiming that I had made a business purchase and not a consumer purchase. They told me if I wanted the goods returned I'd have to pay to have them sent back.

 

The terms and conditions on their web site state that a consumer purchase is:-

“Any person who buys goods from us for purposes which are outside his trade, business or profession.”

 

This seems ridiculous as firstly when the sale was made no questions were ever asked as to what the business name represented. Secondly, that means anyone who makes a consumer purchase from their workplace automatically voids any consumer rights.

 

I have repeatedly e-mailed and written letters to the company asking them to explain exactly how they have come to the conclusion that this is a business purchase. Each time they refuse to answer my questions and keep saying over and over again: "We aren't legal professionals but as far as we are concerned this was a business purchase."

 

I contacted trading standards and they told me I would have to make a county court claim against then. I have done so and submitted the papers to the court. Siren Technology have entered their defence stating that I am involved in the business of video production and video capture therefore my claim as a consumer purchase is void. This is total nonsense as I work for a company that sells video production equipment and has nothing to do with video production. The unit was specifically for transferring old personal video tapes from a format that no-one uses anymore, a fact that I made clear to Siren from the beginning.

 

Even if it was a business purchase I'm amazed there is no protection whatsoever, especially as the goods were faulty. But of course Siren Technology claim there is nothing wrong with the goods.

 

So I've been out of pocket for £350 since December who have both my money and the goods and no intention to assist me further.

 

What can I take to the court to prove this is a consumer purchase and what does it state in law what a consumer purchase is?

[perplexity]

Section 210 of the Enterprise Act applies.

 

Enterprise Act 2002 (c. 40)

 

Consumer protection laws usually apply to a contract, so if the contract is the same for a number of potential consumers, the application ought to be the same, the consumer that the legislation refers to, being the average consumer.

 

c.f. section 6 of the Interpretation Act:

 

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1978/cukpga_19780030_en_1#pb2-l1g6

 

For the legislation to apply to a particular consumer it would thus be "the consumer", rather than "a consumer".

Edited March 8, 2010 by perplexity

[just_jue]

Hi, I think they are trying to get out the Distant Sales Regulations.

If you paid via your personnel Visa Debit I would of thought you were a private not a business buyer. You could contact you card provider as the item is over £100 and see what they can do.

 

Good luck

[perplexity]

With regard for instance to the Unfair Terms in Consumer Contracts Regulations 1999,

 

These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.

N.B. "a consumer", not "the consumer".

 

Statutory Instrument 1999 No. 2083

 

The consumer is therefore the consumer in general; the Regulations may be invoked with regard to the terms of a standard contract as a general issue albeit that a purchase was not yet made.

 

Who then is entitled to decide who is or is not a consumer? It is not fair from the outset for a seller to set himself up to be the sole judge of this.

 

See for instance © of Schedule 2:

 

"making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;"

 

[backinaction]

Thanks all. I'm not sure I completely understand though. Who in this instance is making the decision for the sale to be a consumer purchase? Surely if it's just the seller via his term and conditions, as long as I can prove I do not fall into that category then have I made a consumer purchase. Is that all I have on my side to prove it was a consumer purchase?

 

I tried the visa debit chargeback. Utterly hopeless. Nat West claim to know nothing about it. I had to push, push, push until I was finally given a number for the visa chargeback department. They said: "You entered into a contract with the seller the moment you gave him your card number. You received the goods and the retailer is still trading so the issue is between you and the retailer and is not eligible for a chargeback."

 

Checking on-line I have found this is common policy of most banks to declare first ignorance to the visa chargeback process and then refusal.

 

I contacted the FSO and they sent me the relevant paperwork to submit a complaint against my bank. I don't know if I should pursue the claim before or after the court date right now.

[blitz]

As it was sent to a business address I am guessing it would be for you to prove it was not a business purchase, however personal bank account and a company statement should suffice.

 

Pursue both chargeback and the company for a refund, go via the consumer route anyway. If I get a chance will take a look into what limitations the SoGA has on a business anyway

[perplexity]

If it's a distance contract, objective (22) of the EU Directive applies:

 

Whereas in the use of new technologies the consumer is not in control of the means of communication used; whereas it is therefore necessary to provide that the burden of proof may be on the supplier;

It may however be more to the point to note (10):

 

"there must at least be compliance with the provisions of this Directive at the time of the first of a series of successive operations or the first of a series of separate operations over a period of time" ... the gist being that the contract to apply the rules to is above all else the contract in general, the terms and conditions for a web site for instance, the essence of a consumer contract being the lack of an opportunity to negotiate the terms as would be the case "in the course of a business", when a buyer acts as a business.

 

If you're letting the seller argue about the particular purchase instead of the seller's own general terms, you've all but conceded before you begin, this being the principle to emphasise:

 

Unfair Terms

 

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

N.B. (4)

 

Statutory Instrument 1999 No. 2083

[perplexity]

P.S.

 

Apart from the red herring of the "business purchase", the Sale of Goods Act applies to any contract of sale, except for section 14: "Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality."

 

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1979/cukpga_19790054_en_2#pt2-pb5-l1g14

N.B. then:

 

2F)Subsections (2D) and (2E) above do not prevent any public statement from being a relevant circumstance for the purposes of subsection (2A) above (whether or not the buyer deals as consumer or, in Scotland, whether or not the contract of sale is a consumer contract) if the statement would have been such a circumstance apart from those subsections.]

and Edited March 9, 2010 by perplexity
added quote

[geoff1248]

You have not said what grounds you are trying to claim a refund. Are the good faulty or had they been wrongly described on the web site? If not then why should they refund you either as a business or private individual?

How exactly are the goods "totally inadequate"?

[just_jue]

#9 - Under the distant sales regulations you don't have to give a reason why you want to return an item. If you purchase an item either via the internet or phone you have a 'cooling off' period where you can inspect the item and see if they are for you. The buyer may have to pay for the return carriage but is entitled to a refund including the original postage price, some companies have a time limit which would be stated on their web site, if they don't you can ask for a refund upto 90 days and the company would have to pay the return postage. Certain items are except like brand new and sealed software and personalised items.

This is only available to private buyers not business to business, this is the problem the OP is having as the company are saying that because he had the item sent to his work address that it was a business to business transaction.

I have my own online shop and I have no problem with this, yes it can be a pain but you would rather a happy customer who came back to you later.

[Bookworm]

Please clarify: in your 1st post, first you said the goods were "totally inadequate", then you said they were "faulty". Which is it?

[Bookworm]

Also could you please post the contents of your particulars of claim, removing personal info first?

[perplexity]

Under the Distance Selling Regulations a buyer may agree to pay to return goods but should certainly not have to:

 

17.(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

Statutory Instrument 2000 No. 2334

 

This is important. I have heard of cases where sellers were fooled into believing that it is safe to demand that an item is returned before the refund is granted. Then when a buyer who knows the ropes sues the seller, it goes to court and a judge tells the seller that there is no defence to the claim.

 

[backinaction]

The reason the goods (A Matrox Mini video capture device) were returned are numerous:

 

1) When the goods arrived there was no instruction manual. When I contacted Siren they told me I had to go to a website to download it. When I did the instructions were incomplete and I had to play a guessing game to even get the unit to respond to my computer.

 

2) The company supplied no technical support and flatly admitted they knew nothing about the product they were selling. They gave me the number of a technical helpdesk that then told me they had no UK support whatsoever. So I had to call Canada where the machine was manufactured. They were clueless!! I was getting a runaround from everyone concerned and no-one could supply me with any information on how to get the machine to work properly.

 

3) Try as I might I couldn't get this machine to capture video properly. It just kept stopping halfway through. No change in any of the settings would solve this.

 

4) When I contacted the manufacturer they told me I shouldn't have bought the machine from Siren as they were not registered dealers of that product, could not offer me support and shouldn't be selling it anyway (their exact words). They said they couldn't stop Siren from selling the product but told me I should have contacted them first to find out a list of 'safe' dealers to buy the product from.

 

With no technical support, no manual, no help the machine was not working to any useful standard which is why I returned it.

[perplexity]

Instead of the legal technicality, I'd be wondering what they're worth, these fly by night cowboys.

 

You could go to court and win the case but be left with nothing but the judgement to show for it because they fail to turn up to the hearing and vanish into the fog, jailed or bankrupt or God knows what.

 

Caveat Emptor.

 

Protection legislation is good to the extent that a contract is good. Otherwise, your rights begin to fall away to the extent that the sale was illegitimate, the same as if you sued a seller because of the sale of unlicensed alcohol. The complaint is valid only to the extent that you were innocently duped. If the manufacturer says that you "shouldn't have bought the machine", that is not good.

 

[just_jue]

HI, with what you are saying then the item was not fit for the purpose under the Sales of Goods act are you should be entitled to a refund.

I would speak to trading standards first, write a formal complaint letter to the company saying that you give them x amount of days to agree to you refund or you will start legal proceedings via the small claim court.

 

Good luck

[Bookworm]

Please can you let us know what your POC say? Which laws are you claiming under? Without knowing this, we don't know how relevant their defence is.