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Alex J.
Alex J., Solicitor
Category: Law
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Experience:  Solicitors 2 years plus PQE
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Distance Selling Regulations. Dear Just Answer, I am

Resolved Question:

Distance Selling Regulations.
Dear Just Answer,
I am a manager of an online sofa retailer.
We are based in Merseyside but deliver nationwide.
On a couple of occasions we have called a customer to book in a delivery. The delivery date was agreed with customer.
On the day of the agreed delivery the customer was not at home as they said they "forgot" the delivery was on that day.
On our website we state that we charge a £80 returns fee for any failed deliveries.
Are we legally within our rights to do this as we have been challenged that we are breaking the law by doing this and customers are demanding a full refund inc delivery fee.
We find this unfair as we have had to pay out for 2 men to travel in a van to make this delivery costing the company approx £70.
Surely we should be able to pass this charge onto the customer if the failed delivery was their fault?
Please advise.
Thanks
MJ
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.
Hi, Thank you for your question and welcome. Are customers directed to this term and condition on your website before agreeing the purchase? Also can you confirm is the £80 charge effectively the cost of making the second delivery attempt? Kind regards AJ
Customer: replied 1 year ago.

Hi Alex,

yes the customers have to tick that they have accepted the T&Cs before ordering online.

"Please note that it is the purchaser's responsibility to ensure that item ordered will fit into their property. If the goods do not fit into the property then we can either leave the order at your doorstep or we can bring them back in the van for a £80 returns fee. Once the sofas are back in our warehouse we will be in touch to issue a full refund (minus the £80 returns fee). This returns option is only available whilst the delivery men are still at property. If you have opted for a pallet delivery then if the sofas do not fit into your premises then you will have to return the sofas back to our warehouse at customers own expense for a full refund.

Following cancellation of your order any monies paid will be refunded by the method you used to pay us within 14 calendar days of contract being ended"

The £80 would cover a returns charge if the customer accepted a new delivery date. But we would look to hold if customer just wanted to cancel.

thanks

Michael

Expert:  Alex J. replied 1 year ago.
Hi, Thank you. The customer that cancelled because they "Forgot" - do they still want the sofa? Kind regards AJ
Customer: replied 1 year ago.

We have had 2 instances.

one customer wanted to cancel for a full refund

second customer wanted a redelivery.

where do we stand on both instances?

thanks

Expert:  Alex J. replied 1 year ago.
Hi, Thank you. The customer demanding refund - did they order over the internet? Is so has the cancellation been made within 14 days and is their item bespoke?The other customers will have to pay for re-delivery - you did the right thing, you arranged free delivery once, and do not have to do it for free again. If they do not want to pay, why dont you offer for them to collect the goods at your warehouse? Kind regards AJ
Customer: replied 1 year ago.

Hi Alex,

the person who ordered online - it was not bespoke. We delivered to them 10 days after placing their order but they "forgot" we were delivering that day.

They are now demanding a full refund inc delivery costs.

Legally where do we stand? Can we force the £80 returns fee to cover our loss?

thanks

Expert:  Alex J. replied 1 year ago.
HI, Thank you. In theory he has lost his right to cancel under the cooling off period, because he asked for the goods to delivered within the normal 14 day period allowed under the Distance Selling Regulations. That said you gave him fair notice in your terms and conditions of the £80 charge - it is not a penalty , it is their to reasonably cover your costs and expenses for "forgetting" the delivery date - you should not be out of pocket for for this. If he has an issue with this, he can go and take it up with trading standards. Do you have it in writing from him that he "forgot" the delivery day?
Customer: replied 1 year ago.

Hi there,

no it was a verbal acceptance of the delivery date and he verbally told us he forgot.

So we are legally within our rights to withhold the £80 returns fee to cover our loss?

thanks

Expert:  Alex J. replied 1 year ago.
Hi, Thank you. In my opinion and based on what you have told me, I see no reason why £80 is not a reasonable pre estimate of your loss (and or re delivery costs), where the customer has been made aware of this charge before buying the goods and where the customer has failed to take delivery as agreed. County Court action seems unlikely for £80, but you have to accept you may have a disgruntled customer (rightly or wrongly) that may complain to Trading Standards or give you negative feedback on consumer websites.
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