It did not arrive on 10th, as Apple use "UK MAIL" as the courier. It was rather odd, as Apple emailed me 15:49 on 10th to say it was delayed, but the courier did not record the delay on their tracking until 19:00, which means their tracking is not as good as their reporting to Apple. What was also odd is that the courier had it down as "At delivery location" at 03:38 on 8th, which also made no sense.
I contacted Apple on their chat thing, which was a pain as they could not actually tell me any more than the web site and would not call the courier or chase them unless I called Apple!
Apparently the courier could not find it in the depot so would not be delivered on 11th either. Great! This meant changing plans for the birthday present.
I contacted apple and cancelled the order, as their web site does not offer "cancel" as an option once dispatched.
Nearly a week later, on 16th, courier site still said delayed and no more, and no refund, so contacted Apple again. They were very very reluctant to refund me. They insisted that they needed a contact number for me so they could get the courier to call me about an investigation.
I had to explain many times that I had cancelled the order and the law says they have to refund me without undue delay. Their issues with the courier are no concern of mine and I am in no mood to mess about with some sort of investigation with them. The law is clear that they take risk in transport. I had to quote the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 them several times!
They agreed a refund. But now, on 21st, still no refund. I have chased again and they say that the watch has only just been returned so only now will they do a refund.
This is not refunding me without undue delay is it Apple!!!
What is interesting is reading the regulations. Some people will know the old "Distance Selling Directive" which has been replaced with these new regulations. And I notice the new regulations have a hole in the wording. I am sure a judge would see sense with it, but still, bad drafting.
Section 34 covers a refund, and (4) says the "without undue delay" part, but there is also a hard limit on the time taken to refund. This is defined by either (5) or (6) which cover two cases.
(5) covers "If the contract is a sales contract and the trader has not offered to collect the goods", and sets the limit 14 days after return or proof or sending back
(6) covers all other cases, and sets the limit as 14 days from when cancelled
The problem here is that this was a sales contract, but the trader had not "offered to collect the goods", so the 14 days applies from when I send them back. But I don't have the watch, and never had it, and don't send it back, so the 14 days never starts!
Now, in my case the goods had been dispatched, but what of cases where they have not been. Such cases never start the 14 day time limit, as the goods never need to be sent back. The law has a gap. Clause (5) needs an extra caveat of "and the goods have been delivered to the customer". As I say, I am sure a judge would read that in to that clause.
Even so, Apple are simply ignoring several aspects of these regulations, not "allowing" cancellation at certain points in the process when the law says I can cancel, and not refunding without undue delay, and arguing over it!
You'd think someone would have spotted this hole!
Surely this isn't really a cancellation - since they failed to deliver the goods in the first place, they had never complied with their end of the contract, so weren't entitled to be paid for it anyway?
ReplyDeleteIf and when they'd managed to get the product to you, then you'd have the option (and ability!) to return it for a refund; until then, you don't have the watch, so they shouldn't have your money either. That would have been an easy credit card chargeback, if they'd obstructed any more: "I ordered this item, their carrier lost it so it never arrived. Chargeback pls, kthxbye." End of story.
> Surely this isn't really a cancellation - since they failed to deliver the goods in the first place, they had never complied with their end of the contract, so weren't entitled to be paid for it anyway?
ReplyDeleteIt is not that straight forward, sadly.
Apple and RevK had a contract, and one party’s failure to deliver on their side of the bargain does not excuse the other party from delivering theirs: RevK has a duty to pay and, in reality, in a situation such as this, had actually paid. Leaving aside consumer protection law and rights to a refund, his remedy for breach of contract is damages (and, probably in this case, a right to terminate if he wished).
There are exceptions to this general rule, such as where one party tells the other that they are not going to be performing their obligations — what is known as “anticipatory breach” — and, in that circumstance, the other party can either accept the breach or insist on performance. If they accept the breach, all future obligations fall away and they can sue for breach at that point — however, here, RevK’s duty to pay arose *before* the breach anyway, and so would remain an obligation.
(This is, of course, a legalistic approach, and it may be more practical to say “well, since you’ve breach the contract, I’m not going to pay you: sue me if you want the money, and I’ll counter-sue for your breach. Or we can just leave it there.” But, here, as RevK has paid, if Apple never delivered the watch and failed to acknowledge his consumer rights, his right is to sue for damages, not “not pay”.)