distance selling regulations - mattresses

[Dottydadoo]

We bought some mattresses online for new bunk beds which arrived yesterday. We opened 1 and unfortunately it is just too deep for the bunk bed. Our fault completely and we're really disappointed/kicking ourselves at all the hassle.

I've contacted the website this morning and they advise that because we've opened the 1 mattress, they will not accept it back for hygiene reasons. We've packaged it up again and it looks as it did when arrived but apparently there's a 'seal' which once broken means no return.

I thought the distance selling regulations protected against this? We couldn't have tried out the mattress on the bed without taking the packaging off?

Now we have 1 mattress we need to get rid off, 1 mattress we need to send back at our expense and we still have no mattresses for the bunk bed. Appreciated this is our fault but it seems a bit harsh.

I will never buy things like this online again.

Any advice out there?

[prh47bridge]

The website is wrong.

Whilst there is an exception in the DSR for goods that, by reason of their nature, cannot be returned this only applies where returning the goods is physically impossible or the goods cannot be restored to the same physical state as they were in when supplied. Hygiene concerns are the retailer's problem, not yours. If they gave clear instructions that the hygiene seals must not be removed when examining the mattress and it was possible to examine it fully without breaking those seals they may have a claim against you for breach of duty but it does not take away your right to return the mattress. If there were no clear instructions about not breaking the seals they do not have any claim against you.

Point them to the page on the trading standards website explaining all this. If they still refuse you need to email or write to them giving them a deadline and telling them you will take legal action if they fail to accept return of the mattress and provide a refund. If the deadline goes past and they haven't done anything you can take action in the small claims court. You could also refer them to Trading Standards.

[Dottydadoo]

thanks for your response - that's really helpful.

[MoralisRubric]

The distant Selling Regulation, Consumer Protection (distance Selling) Regulations do not apply as you open the parcel and bought on the business premise. it only applies to goods you have changed your mind which you have 7 days upon receiving the goods to inform the seller and post the items at your cost. NB hygiene reasons a re invalid, these things can be cleaned, why can cloths be exchanged even though people wear the items more intimately compared to sleeping on it.

However, Sales of Goods Act 1979 may apply, as Section 14 'Fit for purpose' can apply, if the item failed to conform to the expectation which may have been provided to you by a sales person. more or less was it fit for the purpose in which you purchased it. below is the list.

(a)fitness for all the purposes for which goods of the kind in question are commonly supplied,

(b)appearance and finish,

(c)freedom from minor defects,

(d)safety, and

(e)durability.

another legal maxim is 'Consensus in idem' meaning both parties did not have a meeting of the minds to contract, so if you were confused about the detail of the description which you assumed to be correct when applying the measurements then you didn't have consensus and thus no contract.

however, really we would need more info on the website, the mattress and the bed measurements etc. before continuing any further.

[prh47bridge]

The distant Selling Regulation, Consumer Protection (distance Selling) Regulations do not apply as you open the parcel and bought on the business premise

I suggest you re-read the OP. The OP did NOT buy on business premises. She bought from a website. The fact she opened the parcel is irrelevant. The Consumer Protection (Distance Selling) Regulations do apply and your "advice" about the Sale of Goods Act is irrelevant. We certainly don't need the information you suggest. The advice I gave is correct.

By the way, it is 'consensus AD idem'. And I really cannot see an argument on those grounds having any chance of success.

[MoralisRubric]

I am well aware that item was not bought on the business premise, however, as the question was about the Distant Selling regulations and the item it bought it would be better the clear these things up for those that might not know.

With items being open and used is relevant as if you had read the bill minutes of stage 1-3 you will find this was the intent of Parliament, which applies to the Golden Rule of Interpreting Legislation.

And since we do not know what jurisdiction the item was bought, Scottish law allows for 'Consensus ad idem' would work in Scotland and I think you'll find there is extensive case law about fit for purpose when it comes to the intent of the advertising of the item - and I never said it would be achievable in court, however, it can be achievable through conversation with the supplier. furthermore, in scotland 'consensus ad idem' is the principle when we can return items becuase they are the wrong size, colour of expectation, some also say it it is covered under the law of error.

While your comments are fair on a basic level that really do not go to the heart of the Consumer Protection (Distant Selling) regulations - which is to be able to cancel items bought away from the business premise.

Sales of Goods Act 1979 is relevant if the item does not conform to the description of the item - which is determined by a reasonable consumer may interpreted.

however since we do not know the full facts your comments only help to a degree.

[MoralisRubric]

I would suggest contact your local Trading Standard/ weight and Mesaures authority or Office of Fair Trade - they will be able to advise and action this better if you fall within the Distant Selling Regulations and maybe the Consumer Protection against Unfair Trading Regulations ( a matter of debate)

As long you Have written to the compnay stating you wanted to cancel the contract within in the 7 day window of receiving the goods then you can be protected if the Office of Fair Trade agrees your protected. As Court Action should be consider the last resort and its expensive.

[prh47bridge]

Your argument on jurisdiction is irrelevant. The goods were purchased in the UK. The DSR therefore apply.

I fail to see how my comments do not go to the heart of the DSR. The OP has purchased goods away from the business premises. Having obtained the goods from a website the OP has found that they do not meet her requirements and wishes to cancel the order. The website is attempting, wrongly, to claim that the OP cannot cancel the order. I have advised that the website is wrong and the OP can indeed cancel the order.

The OP has not claimed that the goods to not conform to the description. Even if they did, it does not prevent her from exercising her right to cancel the contract under the DSR. All it would really do is potentially give her a little longer to reject the goods under the Sale of Goods Act if the goods are faulty, not fit for purpose or don't match the description. However, as she clearly cancelled the order within the timescale set by the DSR, is not claiming that the goods are faulty and is clear that it is her fault she purchased the wrong product, we don't need to worry about the Sale of Goods Act. Even if the goods were faulty or didn't match the description the OP is still entitled to cancel the order under the DSR. She does not have to invoke the Sale of Goods Act. There is nothing in law that says you cannot cancel an order under the DSR when the goods are faulty.

The Office of Fair Trading closed in April. Even if it was open it would not be their decision whether or not the OP is covered by the Distance Selling Regulations. That is a matter of fact, not a matter of debate. In the event of dispute it would be up to the courts to rule. But in this case there is no doubt despite your attempts to argue otherwise. Sales via the internet where the buyer has no opportunity to inspect the physical goods prior to purchase are clearly distance contracts and therefore fall under the DSR.

The Consumer Protection from Unfair Trading Regulations will not help the OP get her money back. They are enforced by the authorities and are entirely irrelevant in this case. There is nothing to indicate that the trader has in any way misled the OP or acted in ways that would distort the behaviour of the average consumer.

This would be a small claim. Whilst I agree that court action is the last resort it would not be expensive. Assuming the mattress cost no more than £300 the action could be started online for £25. If a hearing is needed a further fee of £25 would be required. Both these fees are recoverable from the other side if the OP wins. These figures are for England. Different figures apply in Scotland but costs are still low for small claims.

This is a very simple case. The OP has purchased a mattress from a website. Having received the mattress she has decided she doesn't want it. She wants to reject it under the DSR. She is entitled to do so. There is absolutely no need to complicate it by dragging in lots of other irrelevant legislation.