Customer Looking Inside a Package

If you’re a retailer, you may be breathing a sigh of relief that the busy period is over – however lucrative it may have been. However, there’s a good chance that there is still some ‘aftermath’ to deal with. Amanda Hamilton, CEO of NALP explains where you and your customer stand when it comes to the inevitable returns of gifted presents.

Firstly, and from a purely legal standpoint, without a receipt you’re not obliged to give them a refund, but of course you may feel that doing so is worth it for the goodwill.

Also, if they do have a receipt - it’s a totally different story; there are some pretty strong and clear consumer rights relating to returns: the 2015 Consumer Rights Act. This Act was updated to provide clearer shopping rights, especially when returning items bought online, including digital downloads.

Is the product up-to-scratch?

Although it may seem obvious, there are three criteria that a product must fulfil, and that includes digital content:

  1. Satisfactory quality. The word ‘satisfactory’ is a bit ambiguous here but, generally, products shouldn't come faulty or damaged unless clearly stated (e.g. selling a broken item for parts). For everything else, it largely depends on the item. Luxury products tend to be held to a higher standard than bargain store items. A frayed stitch on a Gucci bag is a bigger deal than on a market-bought bag, for example.
  1. Fit for purpose.  This is much less ambiguous. If the item doesn’t do what it should do, then it’s not fit for purpose. If your new diving mask lets in water, it’s not fit for purpose. If, before buying, you informed (perhaps in answer to a question) the buyer of a novel use for the item and assured them it would still work, but it doesn’t, that also counts as not-fit-for-purpose. 
  2. As described.  The least ambiguous of the three. If the product is different from the description provided or models or samples shown before purchase, then it’s not as described.

If the item the purchaser is returning doesn’t meet these criteria, they have a strong claim under the Consumer Rights Act. It’s also up to you, the seller, to fix the problem, and excuses about sending it back to the manufacturer won’t do.

Returning an item within 30 days

Within 30 days of taking ownership is when the buyer has the greatest level of consumer protection. If any product falls short of the three criteria above, it can be returned with a receipt within 30 days for a full refund. It’s worth bearing in mind that the 30 days starts from when the item was received by the purchaser (unless otherwise stated), not from when it was received as a (for example, Christmas) gift.

After 30 days

Being outside the 30-day window, doesn’t mean the buyer has no claim if the product is unsatisfactory, faulty, unfit for purpose or not-as-described gift. The buyer must allow you the opportunity to repair or replace the product. They can only claim a refund or discount if your attempt to repair the item is unsuccessful or you are unable to replace the faulty item.

Within six months

I’m sure we’ve all found out the hard way that faults sometimes take a few months to develop. As long as it’s within six months of the purchaser receiving the item, it’s assumed that the problem was always there and the seller is responsible for repairing or replacing the item. Of course, if the buyer wants to keep the product anyway, you can always offer a discount instead.

Six months to six years

Although it is trickier to prove, a buyer can still make a return claim after six months. They’ll need to show that the item was faulty when it arrived, which may require an expert report or other evidence. One common example is where there is a known fault across the entire range.

The maximum time to claim is six years after receiving the product and this will likely require them going through the small claims court in England, Wales and Northern Ireland.

Digital content

As consumer goods increasingly come in digital formats, such as music, films or games – are they covered in the same way as physical goods? The answer is yes; the Consumer Rights Act 2015 also covers any goods sold as digital data. That means, it still needs to be satisfactory quality, fit for purpose and as described. If not, they can be returned for refund, repair or replacement ‒ with the same time limits on returns as physical goods.

Now let’s consider what happens if the buyer simply doesn’t like the item? Say it’s in perfect working condition, came as described, and works for its intended purpose, but it’s just not what they, or the person they gifted it to, wanted ‒ can they still get a refund or exchange?

The answer is, it’s up to you! It may be worth offering a no quibble return policy for a set period as this often encourages people to buy and gives them a level of comfort.

If you are having trouble with a customer, it’s always worth mentioning that you know your (and their) rights under the 2015 Consumer Rights Act. If that doesn’t work, then you may need legal advice. A qualified and licensed Paralegal is probably your best bet as they are cheaper yet do much of the same work as a solicitor. Just make sure your paralegal is registered with a professional membership body, such as the National Association of Licenced Paralegals (NALP).

Ashleigh Smith
Article by Ashleigh Smith
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