October eBulletin: Nightmare before Christmas – Online shopping delivery issues and your consumer rights
It may only be the end of October but there are super organised people out there who are already searching furiously online for Christmas presents – yes, I’ve said it! Deny it all you want, but the festive season is fast approaching. ECC Ireland thought it was a good time to talk about delivery of your online presents or other goods – what to do and what are your rights if it doesn’t arrive on time or not at all, if it’s faulty, or if it’s lost? Hopefully this ebulletin will help you be better prepared if things go wrong.
Keeping to the topic of delivery this month’s consumer success story relates to how ECC Ireland helped one consumer get a full refund after the trader insisted the goods had been left in a safe place; apparently the green bin outside the apartment is ‘safe’ – we certainly didn’t think so! The consumer query of the month involves a consumer who was charged extra for a replacement helmet after the first one was damaged but then when the replacement was lost in transit the trader attempted to charge her again.
You can download your free October eBulletin PDF here or, alternatively, read on to find out more.
Keep ho, ho, ho-ing all the way to Christmas with these online shopping delivery tips on rights
You’ve got a million and one presents to get (some of them for yourself – let’s be honest) so there’s no time to waste as the countdown to Christmas Day has begun. With no real idea (again, the honesty) you go online in the hopes of inspiration because there’s no way you’re just going to get boring socks or the ‘I couldn’t think of anything else’ voucher. And then you see it, the perfect present gleaming brightly on the screen and telling you to buy, buy, buy. You do the deed, smugly put your credit card away, and just wait. But then, disaster strikes; that brilliant present is not delivered on time, or there’s no sign of it, and turns out that it has been lost.
This is a scenario that unfortunately does happen to some consumers. For others, the product might arrive but it’s faulty or not as described. So, what are your rights and what can you do to rectify the situation.
Your rights when the product is delivered late or doesn’t arrive at all
When it comes to late delivery of a product you have rights under the Consumer Rights Directive but, if you think you can avail of a full refund straight away, think again, because there are a few steps to take before that kicks in. Here are a few scenarios to help you figure out what you’re entitled to and at what stage.
Scenario one: You’ve ordered a product from an online trader with no specific date of delivery agreed with the seller.
In this situation, the product should be delivered within 30 days unless you have agreed on a shorter timeframe before you entered into the contract. If it doesn’t arrive within this initial 30 days then, at this stage, you are entitled to contact the trader and ask that the product is delivered at a later date that is convenient to you.
Scenario two: The trader fails to deliver the product on the second agreed date.
So you’ve waited the initial 30 days, contacted the trader but the product has still not arrived within the additional timeframe agreed. At this point, you are entitled to cancel the contract and request a full refund of any and all sums paid. To be clear, this means that the trader should pay back the total price you paid for the product plus additional costs such as postage and packaging.
Scenario three: You needed the product for a specific reason and it was essential that it arrived on time.
If you had told the trader that you needed the good for a particular date and that is was essential (for example, a wedding dress or a present by Christmas Day) and the trader agreed to this, then your rights are different. You may cancel the contract and request a refund after the initial 30-day period has expired or by the agreed date without having to arrange additional time for delivery.
Scenario four: If the trader has stated that delivery is not possible
If the trader has clearly stated that delivery of the product is impossible or will not deliver, then you are entitled to cancel the contract immediately and request a refund.
Your rights when the product is damaged or lost in transit
Unfortunately, there are times when the product can get damaged or lost in transit. Let’s face it, all that gigging about in the back of a lorry, or maybe poor packing, can from time-to-time lead to some Christmas present fatalities or it goes AWOL. If this happens to one of your orders then you’ll need to know what your rights are, so read on.Read more
Article 20 of Directive 2011/83/EU on consumer rights and the passing of risk:
One of the first things to establish is where the responsibility for items damaged or lost lies. Is it with the consumer or the trader?
To help you understand this, we must first look at Article 20 of Directive 2011/83/EU on consumer rights which states: ‘In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shasll pass to the consumer when he or a third part indicated by the consumer and other than the carrier has acquired the physical possession of the goods. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier.’
This means that the trader is responsible for the goods until it is given to, and in the possession of, the consumer. If the trader has offered a particular courier service, and this has not been organised by the consumer, then the trader still has responsibility while the goods are in the possession of this courier. However, if the consumer organises his/her own courier/delivery service or nominates someone else to receive the goods (e.g. a neighbour), then the trader’s responsibility ends the moment the goods are passed over to this third party.
Another scenario could also be if a consumer uses a home delivery or proxy address service, for example Parcel Motel or An Post’s AddressPal, then the trader’s liability would end once the goods are passed over to these services. When using third party courier/delivery services it is always advisable to check the terms and conditions.
If an issue does arise while the goods are in transit and a third party delivery/address service has been used by the consumer then the issue of where responsibility lies would depend on when the issue occurred – was it while in possession of the trader or the courier service it provided or did it take place while in possession of the third party service arranged by the consumer? To help determine this, the trader should be called upon to provide proof that the product was delivered to the third-party/consumer and without damage (if applicable), and if trader fails to do so, the consumer may request that the contract is cancelled and a refund is provided.
If it is proven that the issue was caused while in the possession of the third-party service with which you have a separate contract (to deliver the goods safely to you) then you will then need to refer the matter to this trader.
When the goods are received and signed for but turn out to be faulty
We all do it – the delivery person arrives and we just straight away sign for the goods without giving it the once over. ‘But sure, it’s a box, how can you know if the goods are faulty or not!’, I hear you exclaim. Don’t panic, if you or a person nominated by you (like a neighbour) signs for the goods to accept the delivery this doesn’t mean that you’ve signed away your statutory rights.
Check the goods as quickly as you can and if there are any issues you should contact the trader, in writing (like an email) if possible, as soon as you can fully outlining the problem and stating that you wish to avail of your applicable rights.
If an item bought online turns out to be faulty or not as advertised, you have the same legal rights as if you bought it in person in store. Click here for more information about your rights when goods are ‘not in conformity’ with the contract.
When the fault occurs is also very important. If the fault becomes apparent within the first six months, then it is considered to have been there at the time of delivery. So, in the situation where you’ve signed for a product and open up the package to find that it is broken or faulty then you have rights under EU legislation. Click here to find out more.
Please note: You may have to pay for the faulty product to be returned to the trader. However, if it is proven that there is a fault, and it was not caused by you, then the trader should reimburse this extra cost to you.
In the news
Here’s some news articles we’ve gathered which feature some interesting delivery issues that consumers have faced:
- TheJournal.ie (24/09/17) What you’re entitled to if a delivery company loses your stuff?
- Mirror (13/07/17) Why signing for a neighbour’s parcel could land you in court – and who’s to blame if someone else signs for yours
Consumer success story of the month:
An Irish consumer ordered makeup online from a UK trader but the products failed to arrive, despite the fact that the tracking history indicated that delivery had been completed. After a week of waiting, the consumer contacted the trader who informed her that because she was living in an apartment the goods had been “left in a safe place”. However, it turned out that the goods had in fact been left in a green waste disposal bin. The consumer told the trader that she had been home all that day, she had not been alerted by the courier, the goods had not been left in a safe, and no note had been left. The trader refused to refund the money for non-delivery or redeliver the items. ECC Ireland assessed the case further and shared it with colleagues in the UK who contacted the trader on the consumer’s behalf. The trader was reminded of its obligations and agreed to give a full refund of €40.
Consumer query of the month:
Q: I bought a motorbike helmet at a show held in Dublin from a trader from the UK. The helmet was valued at €400 but I got it for €200 which is a great price. However, I later noticed a defect in the helmet; the visor was loose and not covering the front of the helmet properly. I contacted the trader to request a replacement. I was told that if I wanted a second helmet to be sent that I would have to pay £20 for post and packaging. I eventually agreed to pay half but then the trader also insisted that I pay an additional £40 for the new helmet meaning that I would pay an extra £50. But I agreed when the trader said I could keep the first helmet. But then the second helmet went missing because the courier lost it. The trader told me that he would send a third helmet and that we can ‘discuss’ postage and packaging. I don’t want to be taken advantage of. What are my rights? Do I have to pay for post and packaging again?
A: You should never have been charged for postage and packaging or have been charged extra for the replacement helmet if the first helmet was faulty. Under the Sale of Goods and Associated Guarantees Directive 99/44/EC, consumer goods must be ‘in conformity’ with the contract of sale. The fact that the visor did not sufficiently cover the front of the helmet means that it was not fit for purpose and did not show the quality and performance that you would reasonably expect of this type of product. So, in cases of lack of conformity consumer may require the seller to repair or replace the goods and this should be provided free of charge. You should therefore refunded the extra £50 that you paid for the second helmet.
If the second helmet was lost during delivery and it was caused by the courier used by the trader to deliver the goods then the responsibility of this lies with the trader. The trader’s responsibility ends when the goods have been passed into the possession of the consumer or a third party courier, organised independently by the consumer. In this case, the trader should send a replacement helmet to you and there should be no extra charge. If this replacement cannot be completed within a reasonable time or without further significant inconvenience to you then at that point you are entitle to request a reduction in the price or cancel the contract and get a full refund of all sums paid.
Press and Communications Officer
The European Consumer Centre is part of the European Consumer Centres Network (ECC-Net), which covers 30 countries (all EU countries plus Norway and Iceland), and offers a free and confidential information and advice service to the public on their rights as consumers, assisting customers with cross-border disputes. ECC Ireland is funded by the European Commission and the Competition and Consumer Protection Commission.
Disclaimer: Whilst every effort is made to ensure accuracy, the European Consumer Centre cannot be held responsible for matters arising from any errors or omissions contained in this publication. The information provided is intended as a guide only and not as a legal interpretation.
© 2017 – European Consumer Centre (Ireland), CLG incorporated in Ireland, No. 367035, Registered Charity No. 20048617 – CHY14708. Located at MACRO Centre, 1 Green Street, Dublin 7.
This ebulletin is part of the action 670695 – ECC-Net IE FPA which has received funding under a grant for an ECC action from the European Union’s Consumer Programme (2014-2020).
The content of this ebulletin represents the views of the author only and it is his/her sole responsibility; it cannot be considered to reflect the views of the European Commission and/or the Consumers, Health, Agriculture, and Food Executive Agency or any other body of the European Union. The European Commission and the Agency do not accept any responsibility for use that may be made of the information it contains.