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Post by Baron von Lotsov on Nov 2, 2022 12:28:36 GMT
Woman buys £500 worth of shelves and pays for them and the money clears. They are then sent to the delivery firm and the delivery firm is now in possession of them and then the company which supplied them goes bust. The delivery firm refuses to hand the goods over and is ignoring the owner's requests for them.
Stupid bastard on Radio 4 brought in as "consumer advice expert" tells woman she can't do anything, the law is complicated and Victorian blar blar bullshit - no help at all.
Legal position: the point at which the money clears the title of good s is passed to her. Wherever the goods are in this world the property is hers and she has full rights over it, so no one can sell it or hand it over to someone else without her permission. If the delivery firm refuses to give her the goods then they are committing theft if knowingly doing so. She also has the civil right to sue the courier for her loses including the time it takes to get her goods back.
Oh well, such is life. It really annoys me when people solemnly take the advice of experts and they lie to her as well. Poor girl.
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Post by jeg er on Nov 2, 2022 16:21:30 GMT
Woman buys £500 worth of shelves and pays for them and the money clears. They are then sent to the delivery firm and the delivery firm is now in possession of them and then the company which supplied them goes bust. The delivery firm refuses to hand the goods over and is ignoring the owner's requests for them.
Stupid bastard on Radio 4 brought in as "consumer advice expert" tells woman she can't do anything, the law is complicated and Victorian blar blar bullshit - no help at all.
Legal position: the point at which the money clears the title of good s is passed to her. Wherever the goods are in this world the property is hers and she has full rights over it, so no one can sell it or hand it over to someone else without her permission. If the delivery firm refuses to give her the goods then they are committing theft if knowingly doing so. She also has the civil right to sue the courier for her loses including the time it takes to get her goods back.
Oh well, such is life. It really annoys me when people solemnly take the advice of experts and they lie to her as well. Poor girl.
what is the name of the law you are basing your conclusion on? |
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Post by Fairsociety on Nov 2, 2022 17:04:03 GMT
Strange, if she paid for it by credit card some times your credit card company will refund you.
I have to be honest I am not sure about the legality of a courier keeping parcels hostage, if it came down to it they could contact the buyer and give them a opportunity to pay for the parcel, I know technically they've already paid for delivery via the company that went bust, but it's Hobson's choice, lose the parcel or pay the courier direct and have it delivered, or maybe the couriers want to keep the parcels because they can have some valuable items in them.
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Post by Handyman on Nov 2, 2022 18:56:42 GMT
From the little info in the opening thread
As they possession is nine tenths of the Law, Delivery Company have not been paid so refuse to deliver them, so buyer and delivery company have a civil claim against the seller
You are right Fairsociety IMO Hopefully she has paid by card.
If you buy goods or services on your credit or debit card, you have extra protection if things go wrong compared with paying by cash or cheque.
Under Section 75 of the Consumer Credit Act, you can make a claim against your card provider if something goes wrong with an item you’ve bought.
Section 75 means that your credit card provider is jointly liable if something goes wrong. This means it's equally responsible along with the retailer or trader for the goods or services you’ve bought.
So if the retailer goes bust, and the goods or services you paid for cost you between £100 and £30,000, then you can benefit from the full protection of Section 75 by claiming from your credit card company.
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Post by Toreador on Nov 2, 2022 19:08:58 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery.
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Post by Baron von Lotsov on Nov 2, 2022 22:40:55 GMT
Strange, if she paid for it by credit card some times your credit card company will refund you. I have to be honest I am not sure about the legality of a courier keeping parcels hostage, if it came down to it they could contact the buyer and give them a opportunity to pay for the parcel, I know technically they've already paid for delivery via the company that went bust, but it's Hobson's choice, lose the parcel or pay the courier direct and have it delivered, or maybe the couriers want to keep the parcels because they can have some valuable items in them. They will not do any of that and refuse to give it to her, and she even offered to pick it up from wherever they have it stored. It's clearly illegal. What annoys me so much is these people who style themselves as experts do not understand it, and rather than say I do not know, which is honest, they lie. It's not the first time I've had this with R4 so-called experts. I'm not really blaming the BBC here because they called him in good faith. It's the quality of the advice in normal life. |
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Post by Baron von Lotsov on Nov 2, 2022 22:45:21 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery. Well it may well be true the carrier is out of pocket if they do not take payment up front, but that is their loss and their gamble if they wish to carry out terms of business in that way. Any money owned to them will be a case of them entered on a list of creditors, but the banks and the finance people get paid first. In practice they would deal with this via their own insurance, but it is not her problem. |
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Post by Einhorn on Nov 2, 2022 22:53:44 GMT
Baron is correct. Title passes to the buyer when the goods are unconditionally appropriated to the contract (subject to the seller not reserving a right of disposal in his contract with the carrier). The buyer could sue the carrier for the tort of conversion.
(2)Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is to be taken to have unconditionally appropriated the goods to the contract.
(S.18 Sale of Goods Act 1979)
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Post by dappy on Nov 2, 2022 23:08:25 GMT
As noted above, easiest recourse is to pursue the matter with the debit or credit card provider.
In terms of the arrangement between seller, courier and buyer, who owns the goods depends on the detailed terms of the contract between the seller and the buyer. It maybe that title passes when the goods leave the buyers premises or it maybe (more likely) that it passes on delivery to the buyer. Payment is likely to be irrelevant - title can pass without payment being made Or be retained despite payment having been made.
If you think about if title passed when the goods left the seller or when the buyer paid, then if the shipping company organised by the seller went bust or simply lost it, the buyer would lose the goods and the seller wouldn’t care. In the real world in that scenario the buyer would expect the seller to replace.
In the scenario where the seller goes bust while the goods are in the couriers possession, it is highly likely that title remains the sellers. Whether the courier can then retain the goods against debt owed to him depends on the contract between the courier and the seller. The out of pocket buyer’s only legal recourse is against the insolvent seller (or his credit card company).
Sounds like the legal expert on the radio was correct and the internet barrack room lawyer wrong.
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Post by Einhorn on Nov 2, 2022 23:15:48 GMT
As noted above, easiest recourse is to pursue the matter with the debit or credit card provider. In terms of the arrangement between seller, courier and buyer, who owns the goods depends on the detailed terms of the contract between the seller and the buyer. It maybe that title passes when the goods leave the buyers premises or it maybe (more likely) that it passes on delivery to the buyer. Payment is likely to be irrelevant - title can pass without payment being made Or be retained despite payment having been made. If you think about if title passed when the goods left the seller or when the buyer paid, then if the shipping company organised by the seller went bust or simply lost it, the buyer would lose the goods and the seller wouldn’t care. In the real world in that scenario the buyer would expect the seller to replace. In the scenario where the seller goes bust while the goods are in the couriers possession, it is highly likely that title remains the sellers. Whether the courier can then retain the goods against debt owed to him depends on the contract between the courier and the seller. The out of pocket buyer’s only legal recourse is against the insolvent seller (or his credit card company). Sounds like the legal expert on the radio was correct and the internet barrack room lawyer wrong. Except for s.18 SOG above. |
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Post by dappy on Nov 2, 2022 23:28:57 GMT
You mentioned the relevant “subject to” points in your post. This means it , as I said, depends on the detail wording of the contract between the seller and the buyer.
In normal circumstances, if the courier (arranged by the seller) lost the package before delivery, would you regard it as being the seller or the buyers problem.
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Post by Einhorn on Nov 2, 2022 23:38:22 GMT
You mentioned the relevant “subject to” points in your post. This means it , as I said, depends on the detail wording of the contract between the seller and the buyer. In normal circumstances, if the courier (arranged by the seller) lost the package before delivery, would you regard it as being the seller or the buyers problem. The buyer's problem. But it would be good business practice for the seller to send another package, and I imagine that most would do so. |
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Post by dappy on Nov 2, 2022 23:51:50 GMT
It can be and is the default position (if you look at legal precedent the case bizarrely revolves around kidneys). That doesn’t feel fair as the buyer has no contract with the courier hasn’t chosen them often doesn’t know who they are. Why should he be out of pocket if the courier chosen by and paid for by the seller fails to deliver.
So if you look at the small print of pretty much every contract between a corporate say online seller and an individual consumer with delivery to be by a third party courier, there will be a clause which defines that title in this contract will only pass on delivery at the consumers premises. The existence of that clause overrides the default.
In the vast majority of cases, that clause benefits the consumer. Very occasionally (as in the case of the OP) it works against him.
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Post by Einhorn on Nov 2, 2022 23:57:57 GMT
It can be and is the default position (if you look at legal precedent the case bizarrely revolves around kidneys). That doesn’t feel fair as the buyer has no contract with the courier hasn’t chosen them often doesn’t know who they are. Why should he be out of pocket if the courier chosen by and paid for by the seller fails to deliver. So if you look at the small print of pretty much every contract between a corporate say online seller and an individual consumer with delivery to be by a third party courier, there will be a clause which defines that title in this contract will only pass on delivery at the consumers premises. The existence of that clause overrides the default. In the vast majority of cases, that clause benefits the consumer. Very occasionally (as in the case of the OP) it works against him. What case are you talking about? What's the kidney case? Yes, it is the default position. And the contract can change the default position. I don't think I've ever read the small print on anything I've ordered online. I find it very peculiar that sellers include such a term, though. It's very much in the seller's interest that title should pass on the delivery to the courier, so I don't understand why they would change the default position with a term stating that title only passes on delivery to the buyer. |
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Post by dappy on Nov 3, 2022 0:17:56 GMT
I don’t remember the name of the case but the seller was contracted to supply I believe 50ish animal kidneys to the buyer and they perished in the delivery van. Buyers problem.
If you don’t read your contract, that’s your choice but if there is a problem you can’t rely on your failure to read the contract you signed as a defence. The clause I outlined is almost invariably there.
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