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.

[2106greencat]

I'm lost....but then I usually am. Thanks for the info (I  think) :-x

[digital*ghost]

PJ, I appreciate that you sought clarification, but I'm afraid for me that clarifies nothing.... 😞

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.

If a seller sends something, have they not supplied it? That doesn't confirm when delivery is deemed to have occurred, and doesn't say that a buyer has to have received something before a seller's obligation is ended. 

I don't see anything that really makes what is deemed delivery clear, and I would have thought it would be easy to say, hi, you (or the other person on eBay) is right, delivery is deemed to have occurred at such and such a point....but it doesn't seem like they did that?

And if the OFT are happy with buyer protection, I assume that means they're happy that a seller can send something via C&S, but in the event it isn't received, as long as the seller retains the correct documentation, the buyer has no way to recover their money from the seller. 

[phorum_junkie*]

I think we can take it that as I specifically asked about deemed delivery  that supplied is interchangeable with received. especially as they advise to contact your card provider or Paypal if you do not get your item!

I am pretty sure the Distance Selling Regs are even more specific, I used to have a link to where it was stated unequivocally that deemed delivery did not apply to on line and telephone orders but I mustn't have copied the link from my old computer.

[digital*ghost]

I'm sorry, but I just can't take that sentence as unequivocal proof - it is still open to interpretation, as evidenced by your response...I don't think we can take supplied to be interchangeable with received at all...

I think the pertinent question is why, if a buyer is entitled to a refund simply because they don't receive an item purchased online, they don't actually have a way to guarantee they get one if the seller can prove postage?

Would that not make PayPal's buyer protection clauses illegal, both by not taking the funds back from the seller or providing a discretionary payment? 

In other countries, the law is quite clear - the seller is responsible until the buyer receives it, and PayPal's policies in those countries fully reflect that. If that's the case in Austalia, why don't the Australian policies reflect that?

I know you have said that PayPal made a concession for Australia due to the high cost of postage here, but I personally don't see how or why PayPal would care in the slightest what the cost of registered post was or is. You also said, when C&S was first introduced, that you wouldn't be surprised now that there is a cost-effective alternative to registered, if PayPal made it so that proof of delivery was required.... The only change PayPal made to their policies after C&S was introduced was to add the clause that buyers may not receive a refund if the seller can prove postage (whereas before, they would effectively provide a discretionary payment).

[crypsynight]

I'm with D*G on this one. The answer they have provided seems to me to be somewhat ambiguous.

They don't say the 'buyer received' they say 'trader supplied', so it is back to the original question. Has it been supplied upon posting, or when it is received?

[i-once-was-bump]

I have to ask, what is the OFT?

I cannot work it out, I am tired but that doesn't stop my from feeling very stupid asking the question.

[lyndal1838]

Office of Fair Trading?

[digital*ghost]

Ok.... This is not an easy thing to find in black and white, and in clear simple terms. I read through the entire document that was referred to above (The Australian Consumer Law guide for consumers and lawyers). The problem with that document is, although it states all the rights consumers have and that they apply to online trading, the document deals solely with what rights consumers have after goods have been received by the consumer - there is nothing in the entire document that refers to what rights a consumer has if an item is purchased online and subsequently not received. 

There is obviously information about the obligations and responsibilities sellers have, but again they did not deal with lost mail items etc, the closest it got was whether a consumer has the right to claim for consequential loss if consumer guarantees are not met, which is a whole different kettle of fish. 

After all my searching and reading, the only thing I found was this:

Who is responsible for undelivered goods or damage in transit?

Read the delivery terms and conditions before you buy from an online seller. That information usually explains how such issues are handled and who is responsible if goods are not delivered or get damaged in transit. If you are not sure whether insurance is included in the cost of the goods or the shipping charges, email the seller about this before buying the goods.

While completing a sale, you might sometimes be given a choice of delivery options and even asked if you want to insure your goods at extra cost.

Contact the seller immediately if your goods have not arrived within the stated time or they are damaged.

That is a direct copy/paste from the NSW Fair Trading website (link: http://www.fairtrading.nsw.gov.au/Consumers/Ways_to_shop/Online_shopping.html), and while again it is not unequivocal proof of when delivery is deemed to have occurred, the question is phrased so that if the seller were legally responsible until the buyer physically receives the goods, the answer would be just that, and not "read the seller's policies".

[lane-ends]

After all my searching and reading, the only thing I found was this:

Who is responsible for undelivered goods or damage in transit?

Read the delivery terms and conditions before you buy from an online seller. That information usually explains how such issues are handled and who is responsible if goods are not delivered or get damaged in transit.

But dont Ebay and Paypal policies override whatever we put on a listing anyway. We would be hard put to refer to our TOS to resolve a paypal claim