A Christmassy Tale of Three Wise People (and what became of their gifts when they were trumped)
LAYTONS
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here are often times when you want to return something you have bought – including when you realise a gift for someone else is no longer appropriate. In this (entirely fictional) “take” on recent events across the Pond, we consider the options available in those circumstances, with a Christmassy twist thrown in for good measure.
Rebekah Parker Associate Partner | Disputes rebekah.parker@laytons.com +44 (0)20 7842 8000
P
icture the scene: Not so long ago, three wise people, or the “TWPs� as we will call them, saw a strange new star in the sky. Although probably a spy satellite, the TWPs took the star as a sign that the arrival of the saviour of the free world was imminent. Each decided to follow the star and present a gift to their saviour. Imagine, if you will, that the TWPs were Bill Clinton, Barack Obama and Theresa May, and that, on the basis of polls that had never previously been wrong (remember this is fiction), the saviour they were travelling to meet was Hillary Clinton. In some circles, Mrs Clinton was feted as the woman to rescue all Americans, as well as world leaders, past and present, from an uncertain fate at the hands of a reality TV star.
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he TWPs chose the following gifts:
1. A gold watch from Mr Clinton, engraved with ‘HRC POTUS 11.23.16’ and bought online from an English retailer (even with postage costs, the post-Brexit exchange rate made this a bargain); 2. Frankincense bubble bath from Mr Obama - he was aware of the stresses involved in running a superpower and so chose Frankincense for its calming properties. He found a great price through an exotic bubble bath dealer based in the UK and asked the dealer to call him so he could place an order over the telephone (he didn’t trust the White House servers to keep his credit card details safe); and 3. A bathside burner and myrrh oil from Mrs May – she had been chatting to Mr Obama at the last NATO conference and, inspired by Mr Obama’s idea to buy Frankincense bubble bath, decided that a bathside burner and myrrh oil would complement the Frankincense bubble bath perfectly. The day before she was due to head west, she popped to her local health and apothecary store on her lunchbreak and picked up a 10ml bottle and burner that she could take with her to Mrs Clinton’s victory party.
H
aving bought their gifts and (in the case of Mrs May) headed west, the TWPs were dismayed to learn that the result was not as expected. In a shocking turn of events, the polls had got it completely wrong and Mrs Clinton’s bid to be the leader of the free world had failed.
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his left the TWPs in a tricky position. With the chosen engraving Mr Clinton obviously
couldn’t give the watch to anyone else but equally he thought it insensitive to give it to Mrs Clinton. Mr Obama and Mrs May, whilst choosing to be civil to the new leader, didn’t wish to shower him with gifts and anyway, didn’t think he was an essential oil burning, bubble bath kind of guy. Faced with the unrequired gifts, each tried to return them and claim a refund, as follows: •
Mr Clinton had a recollection that British consumers could cancel orders at any time without giving a reason (the contract between Mr Clinton and the retailer was subject to English law and jurisdiction). Mr Clinton decided to do some research and found that yes, pursuant to Regulation 29 of the snappily named Consumer Contracts (Information, Cancellation and Additional Charges) Regulations (the “Regulations”), he could cancel his order at any time without explanation. Mr Clinton decided to read on and saw from Regulation 30 that the period for cancellation was 14 days after the day on which the watch came into his possession. Mr Clinton was feeling confident – he had only had the watch for 10 days. However, Mr Clinton had overlooked Regulation 28, which excludes from the right to cancel, “the supply of goods that are made to the consumer’s specifications or are clearly personalised”. Unfortunately for Mr Clinton, because he had chosen to personalise the watch, he couldn’t return it (unless, under the Consumer Rights Act 2015 (“CRA”), the watch was of unsatisfactory quality, unfit for purpose or not as described).
•
Mr Obama placed his order over the telephone and so his purchase was also covered by the Regulations (again, the contract was subject to English law and jurisdiction). However, Mr Obama had kept the Frankincense bubble bath for more than 14 days and it didn’t appear to be faulty so he wasn’t convinced he had the right to return it. As his time in Office was coming to an end and he had a bit more spare time on his hands he decided to do some research to double-check his rights as a consumer. Mr Obama learnt that retailers must supply a long list of pre-contract information to online and distance selling consumers before they complete their purchase, and if they don’t, some of the retailer’s intended terms of trading may not be enforceable (the list is in Schedule 2 to the Regulations, and can be found here). Whilst the exotic bubble bath dealer gave Mr Obama some information before his purchase, he wasn’t told anything about his rights to cancel the contract and return the Frankincense bubble bath. This meant that Mr Obama actually had 12 months from the 14th day after he received the Frankincense bubble bath to return it to the retailer. Mr Obama informed the retailer he was cancelling the contract and quoted Regulation 31. He decided to take advantage of the model cancellation form at Schedule 3 of the Regulations and made sure he had proof of postage. At the time of writing, Mr Obama has received confirmation from the courier that his Frankincense bubble bath has been returned to the retailer and he is eagerly awaiting his refund within 14 days.
•
Mrs May’s purchase was in person and so the Regulations did not apply, and Mrs May knew from her dealings with the EU that you don’t have an automatic right to get your money back if you just change your mind. Nevertheless she thought it was worth checking the receipt. Whilst the retailer she had bought from allowed returns up to 14 days, that period had expired and so Mrs May decided to keep the myrhh and burner for herself. One night after a hard Cabinet meeting trying to predict the outcome of the Article 50 Supreme Court hearing, Mrs May decided to unwind and enjoy the myrrh herself. She poured the oil into the burner, but the smell was horrendous and the burner immediately cracked! The next day, Mrs May returned to the shop and presented the foul smelling oil and cracked burner. As Mrs May had returned the faulty items within 30 days of purchase, she was entitled to a full refund under the CRA (had she been outside the 30 day period but within 6 months, she would have been entitled to a repair or replacement, unless the retailer could prove the products were not faulty at the time they were sold).
So, in the weeks post Black Friday, and in the run up to Christmas and into the New Year, what can we learn from the travails of the TWPs?
C
onsumers should:
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ensure when ordering personalised gifts that the personalisation is correct and that the receiver will definitely like the gift
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know their rights in relation to returns and refunds; there is a lot of useful information available from the likes of Which? and Citizens Advice
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keep track of delivery dates so that online and distance contracts can be cancelled if necessary
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check individual retailers’ policies for returns as periods may be longer than expected, particularly in December
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etailers should: ensure all the information required by the Regulations is provided to customers pre-purchase, whether the order is placed online or by telephone
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review their returns policies to ensure they are in-line with the Regulations and CRA
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provide training to staff so that they do not inadvertently breach the Regulations or CRA
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consider providing longer return periods in December: after all, it is the season of goodwill!
We wish you a h and a prospero
happy Christmas ous New Year!
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