DIstance Selling question/ - HotUKDeals
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DIstance Selling question/

7percent Avatar
6y, 10m agoPosted 6 years, 10 months ago
I bought a truly awful mobile from the carphone warehouse website back in December, and just got an e-mail saying due to a fault they didn't take payment for it and they will in about 2 weeks time.

Now, I should have just returned it in the first place, but I missed the 14 days return period.

so my question is, have I legally bought this phone yet? can I get out of paying for it and send it back?

Thanks to everyone with any help or advice.
7percent Avatar
6y, 10m agoPosted 6 years, 10 months ago
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banned#1
Yep I think you have bought the phone.

A contract was formed when they accepted your offer of payment.
#2
op did you not sent it back within 14 days because you thought you had got it for free :)
#3
you'll have to pay.
1 Like #4
Agree with everyone else that you'll have to pay. But if you want more advice then Consumer Direct - 08454 04 05 06.
#5
superskilly
op did you not sent it back within 14 days because you thought you had got it for free :)


Probably :w00t:
#6
Didn't actually notice they hadn't taken payment to be honest.

Thanks for your help though guys, appreciate it.
1 Like #7
Actually, there is a potentially loophole here in the Distance Selling Regulations. Forgive me while I get my statutory interpretation hat on. This could be a bit lengthy.

So, the right to return within seven working days is covered at Regulation 11. However those seven days only start running providing that the retailer has complied with certain other criteria:
Regulation 11(3)
Where a supplier who has not complied with regulation 8 provides to the consumer the information referred to in regulation 8(2), and does so in writing or in another durable medium available and accessible to the consumer, within the period of three months beginning with the day after the day on which the consumer receives the goods, the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information.
Now the information referred to in Regulation 8(2) includes:
Regulation 8(2)(a)
the information set out in paragraphs (i) to (vi) of Regulation 7(1)(a)
And those paragraphs state that the following information is required:
Paragraphs (i) to (vi) of Regulation 7(1)(a)

(i) the identity of the supplier and, where the contract requires payment in advance, the supplier's address;
(ii) a description of the main characteristics of the goods or services;
(iii) the price of the goods or services including all taxes;
(iv) delivery costs where appropriate;
(v) the arrangements for payment, delivery or performance;
(vi) the existence of a right of cancellation except in the cases referred to in regulation 13;
(v) is the important one for our purposes. So in other words, for those seven working days to begin ticking, Carphone Warehouse has to provide you with information including the arrangements for payment. Now of course they would have done this with their terms and conditions, but that information has since provided inaccurate due to their error. If them telling you the new arrangements amounts to the correct information (which of course it now does), then there is perhaps an argument that the seven working days starts from the date that they told you about taking payment.

This is just me being technical though. It is only an argument, and is by no means certain to succeed. For what it's worth my instinct was that you'll have to pay the money; it's only when I thought about the DSR in a bit more detail that I realised there might be a loophole.
#8
Crazy Jamie
Actually, there is a potentially loophole here in the Distance Selling Regulations. Forgive me while I get my statutory interpretation hat on. This could be a bit lengthy.

So, the right to return within seven working days is covered at Regulation 11. However those seven days only start running providing that the retailer has complied with certain other criteria:
Now the information referred to in Regulation 8(2) includes:

And those paragraphs state that the following information is required:
(v) is the important one for our purposes. So in other words, for those seven working days to begin ticking, Carphone Warehouse has to provide you with information including the arrangements for payment. Now of course they would have done this with their terms and conditions, but that information has since provided inaccurate due to their error. If them telling you the new arrangements amounts to the correct information (which of course it now does), then there is perhaps an argument that the seven working days starts from the date that they told you about taking payment.

This is just me being technical though. It is only an argument, and is by no means certain to succeed. For what it's worth my instinct was that you'll have to pay the money; it's only when I thought about the DSR in a bit more detail that I realised there might be a loophole.


I can see where you're coming through...and its a good argument but Carphone Warehouse's argument would be that they arranged payment at the point of sale, just didnt take it due to an error. So OP would of had complaint then as no payment was taken meaning contract not binding possibly? But don't quote me on that :whistling:
#9
how much was it for op
#10
davidn84
I can see where you're coming through...and its a good argument but Carphone Warehouse's argument would be that they arranged payment at the point of sale, just didnt take it due to an error. So OP would of had complaint then as no payment was taken meaning contract not binding possibly? But don't quote me on that :whistling:
You're right in that there is an obvious counter argument. Namely that when all of the information was given in the terms and conditions, as well as through general information given on the website, the contract was properly formed with all correct information provided. The time therefore ran as normal. The failure to take payment is arguably of no legal consequence in terms of the DSR. The OP is obliged to pay for the goods, and whilst this didn't happen in line with the agreement, that was not the OP's fault. But the obligation remains, and as such the re arranged payment is an alteration to the original terms and not 'further information', and so does not reset the time under the DSR.

At least that's what I would say if arguing against my own point. Hence why I say it's by no means a watertight argument.
#11
Crazy Jamie
You're right in that there is an obvious counter argument. Namely that when all of the information was given in the terms and conditions, as well as through general information given on the website, the contract was properly formed with all correct information provided. The time therefore ran as normal. The failure to take payment is arguably of no legal consequence in terms of the DSR. The OP is obliged to pay for the goods, and whilst this didn't happen in line with the agreement, that was not the OP's fault. But the obligation remains, and as such the re arranged payment is an alteration to the original terms and not 'further information', and so does not reset the time under the DSR.

At least that's what I would say if arguing against my own point. Hence why I say it's by no means a watertight argument.


here are the terms and conditions from the carphone warehouse website:

3. TERMS OF PAYMENT
3.1. Subject to any special terms agreed in writing between you and us, we shall be entitled to invoice you and you shall pay for the price of the Equipment either upon collection or prior to despatch or delivery.
3.2. If the cost of fitting the Equipment (if appropriate) is included in its price, you shall pay us the price of the Equipment on placing the order.
3.3. If you fail to make any payment on the date it is due then, without prejudice to any other right or remedy we may have, we can:
3.3.1. cancel this agreement between you and us; or
3.3.2. suspend any further deliveries to you; and/or
3.3.3. charge you interest (both before and after any judgement) on the amount unpaid, at the rate of 2% above the base lending rate of HSBC Bank Plc as published from time to time. Interest is charged on a per annum basis, calculated daily.
3.4. Payment on time is of the essence. That is to say that if you do not pay on time, we can terminate the arrangement between you and us. If we do that, we will either not provide you with the Equipment, or if we have already done so, you will give it back to us, failing which we shall be entitled to take it back.

seems to be a lot of empthasis on paying on time/prior to the goods arriving?
#12
csamual
how much was it for op


£39,95 - £5 quidco (which has been validated but not paid)

So not the end of the world, but still I'd like some cash back to put towards a different mobile that isn't so infuriating..
#13
7percent
here are the terms and conditions from the carphone warehouse website:

3. TERMS OF PAYMENT
3.1. Subject to any special terms agreed in writing between you and us, we shall be entitled to invoice you and you shall pay for the price of the Equipment either upon collection or prior to despatch or delivery.
3.2. If the cost of fitting the Equipment (if appropriate) is included in its price, you shall pay us the price of the Equipment on placing the order.
3.3. If you fail to make any payment on the date it is due then, without prejudice to any other right or remedy we may have, we can:
3.3.1. cancel this agreement between you and us; or
3.3.2. suspend any further deliveries to you; and/or
3.3.3. charge you interest (both before and after any judgement) on the amount unpaid, at the rate of 2% above the base lending rate of HSBC Bank Plc as published from time to time. Interest is charged on a per annum basis, calculated daily.
3.4. Payment on time is of the essence. That is to say that if you do not pay on time, we can terminate the arrangement between you and us. If we do that, we will either not provide you with the Equipment, or if we have already done so, you will give it back to us, failing which we shall be entitled to take it back.

seems to be a lot of empthasis on paying on time/prior to the goods arriving?


I can see your point but it does state that if YOU fail to make the payment...which technically is correct as you havent paid them (regardless of any error/fault). And if your going to go down this route, you'll end up paying more as per number 3.3.3 about charging interest.

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