Len Dastard tackles returning goods and the Distance Selling Act

1 March 2011

Bitterwallet - Len DastardDía bueno a usted señores! It is I, Len Dastard, masked consumer champion – a genuine litigation executive with a fictional wrestling alter-ego.

What is not fictional, however, is my love of capes. And women. A woman wearing a cape will cause me to go tuercas amor. You know how it is. Or don't.

We find ourselves this week looking again at the beast that is the Consumer Protection (Distance Selling) Regulations 2000.

Avid Bitterwallet reader David has been in contact following a purchase that was made on Amazon (market seller) for a pair of headphones. David received the headphones and then decided (after an inspection) that he no longer wanted these, so telephoned the seller to arrange a return and refund, within the cooling off period of seven working days.
The seller pointed David to his Terms and Conditions which state (I wont post these as it is very long winded) that the item can only be returned and refunded if it was in its original packaging and undamaged. They advised David that as he had opened the packaging it could not be returned. They said that they would only accept a return if the product was faulty.

We therefore sent the following letter to the seller:

Dear Sirs

ORDER NUMBER - *******

I write with reference to the above order number.

Please accept this as my written notice to you under regulation 10 of the Distance Selling Regulations 2000 to refund my purchase price upon me returning the goods to you.

My only duty to you is to take reasonable care of the goods whilst they are in my possession. Under the regulations I am able to open the packaging to reasonably examine the goods that I have ordered. You are therefore unable to refuse my refund due to me opening the package as long as I have not breached my duty to you to take reasonable care. I think it is clear that I have not breached my duty to you.

If you need to contact me then please do so on ***********.


David *****

The penultimate paragraph is important. As a consumer you have a duty to take reasonable care of the goods whilst they are in your possession. Opening a package to inspect the contents is certainly reasonable. Throwing it against a wall to check its durability is not reasonable.

It is worth bearing in mind that some items for hygiene reasons would not be able to be returned (unless you trying to return these items for one of the reasons set out in the Sale of Goods Act 1979). This is usually stated in the T&Cs of the individual retailer and would cover items such as some clothing, jewelery etc.

In this instance, Bitterwallet got a result for Dave; the seller has agreed to a refund.

What's that? You have more questions and queries for me, fake wrestling legend Len Dastard? Of course you have! Send your emails to [email protected]

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  • Sean
    "It is worth bearing in mind that some items for hygiene reasons would not be able to be returned" Headphones go in ear, or on ear. Frankly the guy has no case, man up and pay for the goods that you ordered!
  • Sgt U.
    What if they were never worn? Should he man up and pay for the goods in that case?
  • Sean
    Yes. Would you want to put headphones on that someone else has worn? I certainly wouldn't, the seller therefore cannot (morally) sell them again as new.
  • Sgt U.
    One more time. What if they were never worn? Should he man up and pay for the goods in that case?
  • Jamie
    @Sean FAIL! haha
  • Mark C.
    @Len - I've always been (vaguely) curious about where items such as earphones fall under hygiene regulations. How can the seller be 100% sure the buyer hasn't worn them, any more than another seller could be completely sure a buyer hasn't worn earrings, undercrackers or whatever (assuming there are no massive skidmarks on them)? Mind you, I suppose if you get a pair of earphones back with massive skidmarks on them, the case is somewhat clearer...
  • Len D.
    Hi Mark I would imagine that the seller would be able to see whether these have been worn when they are returned. Not to split hairs here but as far as I was made aware the item was a pair of headphones so it would be less obvious if they ever were worn. As far as I know (and I have never been asked to find out!) it is down to the individual retailer to include in their terms any "no returns policy" on items that they will not refund. It is worth remembering though that this cannot exclude the implied terms under the Sale of Goods Act 1979. There may also be aspects of whether it is fair or not offer a refund and the term might be construed as unfair under the Unfair Contract Terms Act 1977. There are a few requirements though that would need to be dealt with. Quite possibly the seller cannot be 100% sure. They didn't refuse the initial request because of this point. It was down to the packaging. That probably didnt really help much! ^ Len
  • Richard
    I agree with Sean. Whether he has a case or not I'm not concerned with, and the fact he was refunded doesn't prove it either way, I wouldn't be surprised if they agreed to get rid of the hassle. I personally feel tho that if the packaging has been opened they shouldnt be able to return it. It's obviously gonna devalue the item and the seller will lose out through no fault of their own.
  • james d.
    Then items should be supplied in packaging that allows inspection of the item without the destruction of the packaging. It is not unreasonable to expect to inspect the item and in most cases you have to damage the packaging in order to do so. By this rationale all items supplied in a box cannot be returned under DSR.
  • Mark C.
    Thanks for the answer, Len, and yes, I suppose the items being headphones would make a difference. I just find it interesting that the hygiene regulations seem to be quite arbitrary in their application, and seem to apply to only some types of item where there may be a hygiene issue and not to others (wearable electronics in particular). Admittedly I'm beginning to sound like Howard Hughes here....
  • mike o.
    And therein lies a massive problem with distance selling regs. If it is up to the retailer to make exclusions (as opposed to certain goods being excluded by the regs anyway), it seems unfair to the retailer. Headphones usually come in a sealed package you have to open with scissors anyway. S. according the info above, the regs as they are allows someone to order them, open them to 'inspect' them, decide they dont want them and return them for a full refund. The retailer is out of pocket, they cant re sell those earphones and it likely to be no fault of their own. With some headphones costing upwards of £50.00 its not small change, it might have been the only thing that shop sold that day. Why did reader David decide he didnt want them? were they not as advertised? were they faulty? or did he just change his mind? UK consumers seem to think everyone owes them a favour and consumer law doesnt seem to help. Im all for making sure people arent ripped off... but that extends to retailers as well.
  • jia h.
    I think the key issue is whether headphone (especially the headphone on(not in) ears) falls under hygiene regulations. In my view, it is not. Because it is like suit, coat, gloves, scarf, caps and so on which are normally allowed to be returned, and it is not like underwears, beddings.
  • Consumer B.
    [...] jeans online with Debenhams and arranged for them to be delivered to his local  store. Remember, the DSR regulations cover you when you are “shopping at a distance”. Despite having the goods delivered to the store Krato still shopped online and therefore was able [...]

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