DEEMED DELIVERY

[phorum_junkie*]

After years of 'debate' about deemed delivery I decided to get clarification so sent this email the the OFT

I wonder if you can clarify something for me. On the ebay discussion boards there is a member who keeps quoting legislation that appears to say that once a seller hands over the goods to the delivery service the item is deemed as delivered and the buyer has no right to a refund. They keep saying that this overrides Paypal buyer and seller protection so even if the buyer qualifies under their policy for a refund for non receipt the seller can refuse

.
I find this impossible to believe and would like to be able to quote something that makes it clear that a buyer is always entitled to their money back if they do not receive what they paid for.

This is the reply

Under the current Australian Consumer Law implemented 01 January 2011

(there then follows a lot about what is a consumer and who has to provide guarantees but none of it applies to delivery but I can c&p it if anyone wants to read it)

If a product has been purchased and not supplied by an Australian based trader (not a private seller), the consumer is entitled to a refund.

By way of general information, for transactions made via credit card you can report a dispute to your credit card provider. Most providers have a helpline designed specifically for this purpose. Disputed transactions are usually suspended during an investigation and incur no interest.  If the transaction was made PayPal you may be eligible for PayPal's Buyer Protection, however with both of these options please note there are time limits attached to the procedure, so it is essential you inform them as soon as possible.

So it appears that the OFT are quite happy with the Paypal buyer protection policies and there is nothing there that says companies can wriggle out of their obligation by quoting deemed delivery.

[breracing-1]

If a product has been purchased and not supplied by an Australian based trader (not a private seller), the consumer is entitled to a refund.

How does a buyer prove non supply.......because they said so? Anyone can say that to fraudulantly claim a refund for non supply when in fact they did receive the item lodging a false claim from the motivation to get a freebie?

[donnashuggy]

tall bearded

What if you don't offer more that one option? Only standard post and no ability to select a registered option at checkout?

The choice of the delivery service to be used rests with the buyer, and the legislation clearly imposes an onus on the seller to do as buyer instructs. That is, if in my listings I only provide for regular post, and the buyer says no I want it sent registered, then the seller must do as the buyer instructs, because if they don’t, they may well find themselves at risk until the item is actually received.

[hawkerdemon]

Its a hoary old topic but irrespective of the law the practicalities are

If it was posted and buyer says it was not received the system favours the buyer irrespective of deemed delivery: ie If the seller does not refund they will get bad feedback and of course no repeat business. Its usually just easier and better business practise to refund.

If there is a susipcion that the buyer did receive the item just block them.:-)

[colic2bullsgirlore]

tall bearded

What if you don't offer more that one option? Only standard post and no ability to select a registered option at checkout?

The choice of the delivery service to be used rests with the buyer, and the legislation clearly imposes an onus on the seller to do as buyer instructs. That is, if in my listings I only provide for regular post, and the buyer says no I want it sent registered, then the seller must do as the buyer instructs, because if they don’t, they may well find themselves at risk until the item is actually received.

You need to make sure that the buyer is aware of the risk and also include a recommendation that registered post/insurance is a more secure option.

Mail order delivery has been taking place in Australia before the internet was thought of or indeed invented. There is no difference between mail order and an internet sale save for the method that the item was advertised.

Here are some examples of terms of sale from some Australian online businesses that lay out the notification requirements

ticketmaster

 Tickets sent by normal mail or express delivery cannot be traced and no responsibility will be taken for tickets sent by this method. Alternatively your tickets may be collected from the venue on the day of the performance. Please check box office operating hours. In some instances where a venue collection is not available, alternative arrangements may be offered. Please check the purchase page for that event.

sugar free zone

Liability
Whilst we will take due care to adequately pack your goods, we cannot be held responsible for goods damaged or lost due to circumstances that are beyond our control. This applies to goods in transit or after delivery. We will gladly follow up on any delivery problems with Australia Post, but by placing an order with Sugar Free Zone Pty Ltd, to the extent permissable by Australian law, the purchaser absolves Sugar Free Zone Pty Ltd and its employees of any responsibility for the goods once they have been delivered in good condition to our local post office.

mothers direct wholly owned  Subsidiary of Australian breastfeeding association

Your order will be dispatched by either Australia Post standard mail or independent courier. Please choose which method you would like to use at the check out. We strongly advise that orders over $200 in value are sent by courier, as these orders can be tracked. Mothers Direct can not be liable for goods lost in transit by Australia Post, as these are not trackable.

New style direct

# Titles to the goods purchased by you remain with us until you have paid for them.  Once the goods are paid for in full, the title will pass to you. .
# Risk in the goods passes to you when the goods are taken from storage at our warehouse for delivery to you.  We recommend that you insure the goods until delivery to you.


danoz direct

Danoz Direct will not be responsible for items that are lost or misdirected

Title to the goods purchased by you remains with us until you have paid for them. Once the goods are paid for in full, the title will pass to you.

[breracing-1]

You need to make sure that the buyer is aware of the risk and also include a recommendation that registered post/insurance is a more secure option.

No you don't actually. There is no requirement I am aware of that enforces a seller to inform a buyer of risk assessment strategies, it's up to the buyer to accept the postage/delivery method offered or request an alternative prior to purchase.

[donnashuggy]

I imagine we are all going to be forced at some stage to offer an express option (reading between the lines)

There is no risk for the buyer if they use paypal anyway with regular post. Not one that I can think of.

It's a pretty negative thing for buyers to read lengthy terms and conditions prior to purchase so I don't bother, waste of time and space.

[jameshouseofstyle]

Once and for all -

According to the law, Ebay and PP, responsibility of a seller ends with posting the parcel, as there is a third party involved in whose manner of operation seller doesn't have a say or any control, such as APO or courier companies.

Buyer is totally responsible to ensure by whichever means he choses that he will actually receive the goods and seller will follow his instructions and post it accordingly.

The only reason, two reasons actually, that this is not so in practice is the fact that no seller deliberatelly wants to see the buyer out of pocket and possibility of a bad f/back (this applies to Ebay only) 

Buyer who wants the cheapest postage, some even argue about that, they want it cheaper still - and they don't receive the item - have only themselves to blame, complain all they like, threaten with everything, seller doesn't have to give them refund or a replacement.

If they paid with PP, they may or may not get their money back, depends on weather PP believes them, but they (PP) also HAVE to pay the seller back if he complains about unfair decision.

[colic2bullsgirlore]

You need to make sure that the buyer is aware of the risk and also include a recommendation that registered post/insurance is a more secure option.

No you don't actually. There is no requirement I am aware of that enforces a seller to inform a buyer of risk assessment strategies, it's up to the buyer to accept the postage/delivery method offered or request an alternative prior to purchase.

http://www.austlii.edu.au/au/legis/nsw/consol_act/soga1923128/s35.html

(2) Unless otherwise authorised by the buyer,

the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case.

If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to the buyer, or may hold the seller responsible in damages.

The highlighted piece of the SOGA clause above is the reason (and the legal requirement if you are using deemed delivery) why sellers need to include the warning in their terms and conditions. By offering registered post, stating the risk, the point at which the items title changes hands and allowing the buyer to choose then the buyer has AUTHORIZED  that mode of freight to be used by the seller

[breracing-1]

The highlighted piece of the SOGA clause above is the reason (and the legal requirement if you are using deemed delivery) why sellers need to include the warning in their terms and conditions. By offering registered post, stating the risk, the point at which the items title changes hands and allowing the buyer to choose then the buyer has AUTHORIZED  that mode of freight to be used by the seller

The legislation doesn't require any such thing? It requires that the seller delivers to the carrier in on behalf of the buyer in a mode of transport that is reasonable. No legislations requires choices and risk factors to be highlighted. In the case of an ebay sale where the listing has published the mode of freight (postage) offered, the buyer has authorised that mode of freight by purchasing the item which forms the terms and conditions (contract) of sale.

However, the buyer for example could reject delivery to the carrier in the case of a lost parcel and hold the seller resposible if the seller cannot provide proof of postage which is basically what occurs in a Paypal INR case.

[colic2bullsgirlore]

I am glad you mentioned contract.....It is in the way you use the legislation.

By offering more than one postage mode ie. regular. registered and registered with insurance then the buyer decides the most appropriate postage and authorises the postage mode by paying the invoice.

The selection by the buyer demonstrates informed consent

 If the seller only offers one form of postage then although the buyer has authorised the postage the contracted service may be deemd inappropriate and even though the buyer has authorised it the seller selected the sole alternative and does not necessarily demonstrate informed consent by the buyer

If the sellers terms and conditions include the explicit time that the title changes hands, the risk that is involved and who is liable and the recommendation to use a more secure delivery mode then the buyer has given informed consent, chosen the mode of freight and agreed to the terms of the contract.

If a seller does not include any terms and conditions in their contract then regardless of the mode of freight, deemed delivery or whatever they can expect a flogging in the small claims division of the local court because the terms of deklivery were not clearly defined in the contract.

http://www.lawlink.nsw.gov.au/lawlink/lawaccess/ll_lawassist.nsf/pages/lawassist_whos_who_in_court

Happy to agree to disagree however I will not be altering my t and c's or opinion anytime soon.

I wondered if you could give any other reasons why the companies I highlighted in a previous post included the terminology in the delivery terms and conditions other than to reinforce the contract rather than relying on the common law points that the SOGA already provide??