To think this (online) shop should refund me

[mrsfoof]

I bought some things online at the end of May. I paid for first class post and got an email to say the order had been sent the next day. I've just realised that it never arrived so contacted the seller (an online shop, not Amazon / eBay) to ask for a refund.
The seller is refusing to refund because it's been 3 months and this was the first time I'd been in touch. Their reason is because it's too late for them to claim from Royal Mail for the lost parcel. That seems unfair - it's not my fault they can't claim anymore and I've not got the stuff I ordered.
Any ideas? Can I take them to court (seems a bit extreme as the order value was only £50 but I can't afford to lose this)? Annoyingly I didn't pay with PayPal.

Sorry, but this is down to you. They are correct in saying they can’t claim from Royal Mail, so why should they lose out because you didn’t realise you hadn’t received he parcel? You shouldn’t expect them to pay because you couldn’t get your act together enough to inform them sooner. Take ownership of your mistake instead of expecting someone else to make things right.

Yep, exactly.

I've had one case where an item arrived damaged - the customer sent me proof, I claimed from Royal Mail and happily sent them a free replacement. I also sent an item via 1st class once and it took over a week to arrive - the customer mentioned it (no complaint, just to let me know) - I refunded all her postage and gave her a small discount on her next order as an apology.

I have NO issue with people complaining if something hasn't arrived or there's a fault, but they do need to do it in a timely manner. If someone waited three months and tried to claim a refund (with no proof of anything), I'd think they were utterly bonkers.

And OP only has the seller's word for it that she sent them. In this situation, legally the onus is on the seller to prove delivery.

You can assume as much as you like, it doesn't change the legal position.

Unless there is a specific term in their contract requiring OP to tell them by a specified date if she doesn't receive the goods, they lose out because they chose to use Royal Mail and didn't track delivery.

Who said it wasnt tracked? I use RM along with other couriers, all tracked! I still have a timeframe for when I can claim, You cant claim for non tracked either!

You're very keen on the legal position, but according to Citizens Advice:

Under the Consumer Rights Act, you can ask the seller to deliver the item again if the item wasn’t delivered either:

by an agreed date
within a reasonable time - usually within 30 days

Which shows that the company did nothing wrong as OP never contacted them within the 30 day timeframe to give them a chance to correct the problem.

Not according to Citizens Advice.

Under the Consumer Rights Act, you can ask the seller to deliver the item again if the item wasn’t delivered either:

by an agreed date
within a reasonable time - usually within 30 days

www.citizensadvice.org.uk/consumer/somethings-gone-wrong-with-a-purchase/if-something-you-ordered-hasnt-been-delivered/

It doesn't say you can just wait three months and expect them to re-deliver!

www.which.co.uk/consumer-rights/advice/my-delivery-or-online-order-hasn-t-arrived-what-can-i-do-aLlda9w2pukM

This is also quite interesting and it appears your right to a refund depends on quite a few things, including what delivery instructions you gave etc.

@mountainsunsets that's not what that Citizens' Advice page is saying at all.

You're misreading it.

It's saying that you need to give the seller a reasonable amount of time to try to achieve delivery before you ask for a refund. They suggest allowing 30 days before it is reasonable to assume that it is lost.

The online company will be able to see at their end that you did not receive the item - providing it was sent tracked of course

I'm a small business owner. I would replace this for you - once I could see that you had not received it. Yes I might eyeroll a bit at why it had taken you so long to notice but for me, that's beside the point

You ordered from my company. You didn't receive the goods. I will re send for you

That's how I run my business

Yes, I know that.

And as far as I understand it, that means OP should have contacted them within that 30 days and given the retailer a chance to solve the issue - eg. giving her a refund or a replacement. If the refund or replacement never arrived, then she could take it further.

I find it very hard to believe that you can just go to a company months after placing an order (and after no attempts at communication) and get a full refund.

It wasn't sent tracked, though. It was sent via normal 1st class delivery.

Neither party has any proof of anything. OP has an e-mail saying the order was sent the following day - that's it. She has no proof she didn't receive the parcel, and the company has no proof she did as it's now three months down the line and they only keep proof for six weeks.

@mountainsunsets

And as far as I understand it, that means OP should have contacted them within that 30 days and given the retailer a chance to solve the issue - eg. giving her a refund or a replacement. If the refund or replacement never arrived, then she could take it further.

I find it very hard to believe that you can just go to a company months after placing an order (and after no attempts at communication) and get a full refund.

You really are not understanding it. Citizens' Advice are saying DON'T contact the retailer before 30 days asking for a refund or replacement because the amount of time considered reasonable by statute for them to get the item to you is 30 days. Of course you can contact them to start looking for the item sooner, but they don't have to entertain a request to refund or replace until 30 days have elapsed. There is absolutely no statutory maximum time under 6 years within which you must notify or make a claim.

However, as I said above, it is possible for a retailer to insert into their standard terms and conditions a provision that requires all non-delivery to be notified within a particular timescale. We do not know if OP's contract contained such a clause. If it did, the seller can rely on that as a matter of contract. However the term would have to be brought to the consumer's attention at the time of purchase and cannot be unreasonably short otherwise it would breach consumer law.

Well-advised retailers do this (often at the request of their insurers) to protect themselves in situations where too much time has elapsed for them to track down the missing package. They do it precisely because the law does not give them this right by default!

As to the point that people keep coming back to -how can OP prove that she didn't receive the package? She swears a witness statement saying "I did not receive the package". This is her evidence. It is open to the other side to attack her credibility, and witness evidence alone is never as good as witness plus documentary evidence, but that's all she has to do. In the unlikely event that the case went to trial the judge would listen to her and take a view as to whether, on the balance of probability, she was telling the truth. It's simply not correct that she has to start off by proving that she is not lying.

You sound sensible! If you wanted to, you could look at adding a maximum notice of claim provision to your Ts and Cs. Look at the terms that your delivery agents give to you and see if you can mirror them, but bear in mind that business-to business contracts allow more restrictive terms than business-to-consumer contracts.

@mountainsunsets then the company is very silly then. I always always send tracked because A I can track it (obvs) and B it stops people saying they've not received it when they have

@HaveringWavering definitely makes sense actually to have a maximum claim time and it's something I'll discuss with my business partner as it makes a lot of sense

I've just read though that the company in this case sent the item non tracked and that's rather stupid of them!

It seems there is just errors all round here tbh but I'd still err on the side of replacing the goods and learn from it as a company

I'm Florence btw!!! Name change for another boring property thread!

No that's not what the CAB advice is saying.

It is saying that the reasonable time (i.e. 30 days) is the minimum time you should wait before demanding a refund for failure to deliver.

In other words, if I order something without a specific arrival date, and I then contact the seller after 14 days demanding a refund because I wanted it on time for a birthday, that would not be reasonable and they could tell me to wait for it to arrive.

On the other hand, if I had been waiting 30 days, CAB is saying that is a reasonable minimum period to wait before demanding a refund.

The CAB advice says nothing about a reasonable maximum period to wait.

As for the OP, of course the business should resend or refund, unless they made clear at the time of ordering that claims for non-delivery must be made within a certain window.

There are any number of reasons why someone might forget that they were ordering something or not realise it has not been delivered. In the OP's case, it was something for work, and something she didn't need for a few months. So she carried on with her life and forgot that it hadn't been delivered. It might just as easily have been the case that she went travelling for three months, or went to stay with family etc.

A failure to realise it hasn't been delivered doesn't mean someone can afford to either not have the product or can afford to buy it again. It just means they ordered something that they don't need immediately, and then followed up when they did need it.

OP's contract is with the seller, not with Royal Mail. It's not her job to know the terms and conditions of Royal Mail, nor to know when the seller would be barred from claiming back from Royal Mail. All of that is the seller's responsibility. So unless the seller made it clear to the OP what the terms were, they have no reasonable basis to deny a refund.

If businesses want to protect themselves against this, then they need to either (a) choose delivery partners with more flexible terms; (b) make a maximum claim period explicit in their T&Cs or (c) send using tracked delivery.

It is absolutely your fault. Why should the company / the bank be out of pocket because you failed to keep track of your orders? You're being ridiculous

Because the legal responsibility rests with a seller to get the goods ordered to their customer, not the other way around.

The seller did not take adequate steps* to protect themselves here but that’s not OP’s fault.

*Unless they included a maximum claim time in their T&Cs which doesn’t seem to have been the case.

I would be very surprised if a small claims court would roles in ops favour.

I would think they would look at what's reasonable, and that the buyer should notify that the item has not been delivered before the deadline for getting compensation from your delivery company is up.

There might not be a maximum time stated - but honestly, who would have thought that there would need to be one? Nobody with any sense waits for three months before telling the seller the item didn't arrive.

And as far as I understand it, that means OP should have contacted them within that 30 days and given the retailer a chance to solve the issue - eg. giving her a refund or a replacement
No, the 30 days is the time frame within which the item should arrive.The CAB do not actually state a time frame within which a buyer should then have to make the claim - 90 days is standard, some companies may allow six months. It’s discretionary and should really be clearly stated in the sellers t and cs.

Who told you that? This is completely incorrect, Amazon’s terms are claim within 90 days from the maximum expected delivery date if item not received (and some times they may even extend that, at their discretion). You need to get back in touch with Amazon and quote their own terms to them.