Withdrawal from the contract and payment on delivery. How to resolve the most troubling legal issues for store owners.

Is the customer always entitled to a refund for the returned product?

The consumer has the right to cancel the contract within 14 days. However, for many people it's an opportunity to use the product and send it back within that time. The problem is quite common. One owner of a store running on Shoper software wrote: "I sell shoes, so the customer can walk in them. But if someone buys running shoes and runs a marathon and then makes a return (because he has the right to do so), how do I behave? How to calculate the amount of the return in relation to wear and tear? I only sell new items, so in my opinion, returning a used item is a 100% cost to me."

Two issues are relevant here. The return of the goods and the diminution of their value due to use. The buyer is responsible for the latter. A provision of the Law on Consumer Rights, Article 34, is helpful here.

Article 34 of the Law on Consumer Rights [Return of items by the consumer].

"4. The consumer shall be liable for any diminution in the value of the thing resulting from the use of the thing beyond what is necessary to ascertain the nature, characteristics and functioning of the thing, unless the trader failed to inform the consumer of the right to withdraw from the contract as required by Article 12 (1) point. 9"

Some guidance in this regard can be found in the recitals to the European Directive on Consumer Rights where it is indicated that the consumer should handle and inspect goods only in the same way as he could do in a stationary store, adds Zofia Babicka-Klecor of Legal Geek. That is, referring to the example above, the consumer should only try on the shoes, but should not wear them. During the withdrawal period, he should handle and inspect the goods with due diligence. The checking should not go beyond what is necessary to ascertain the nature, characteristics and functioning of the thing i.e. neither should it involve actions other than, for example, the consumer would take in a stationary store to check the shoes.

So, referring to the seller's question - running a marathon will undoubtedly reduce the value of the product. This is a definite overstep in examining the functions and features of the purchased footwear. Another question arises: how to calculate the reduction in the value of the goods?In this regard, unfortunately, there are no regulations or clear guidelines. A clue for the seller will be, for example, offers for the sale of used shoes (such or such) posted on auction sites.

Who bears the cost of returning the goods - the seller or the buyer?

Who bears the cost of transporting the product when the customer returns the purchased item to the store? The seller? Or perhaps the purchaser, though? The latter, but...

One issue is important here: has adequate information about the cost of sending back the goods in case of withdrawal been included in the store's regulations? In the documents prepared as part of the Shoper Regulations application, created in cooperation with the Legal Geek law firm, this obligation is included in the store's regulations, which protects the interests of the seller. Of course - if there is such a will of the seller - nothing prevents him from taking over such a cost on himself.

- If the store's terms and conditions do not mention returns of purchases, the cost of delivering the product from the store to the consumer upon withdrawal from the contract shall be borne by the seller in an amount equal to the cheapest shipping method available in the store, i.e. it shall return to the customer the equivalent of the cheapest shipping method in its store. Until the item is delivered to the buyer, the seller is responsible for the goods, so it is worth choosing shipping options so that the products sent with them are safe. However, in a situation where it is the consumer who withdraws from the contract, he must deliver the product back to the store at his own expense. If this happens when the shipment is in delivery, the same rules apply. The customer has the right to withdraw from the contract and return the product at his own expense," explains Oliwia Tomalik, Marketing Manager of Shoper.

Damaged shipment - who is to blame?

Another issue troubling e-commerce owners is the question of liability for damage to shipments. One e-tailer wrote: "Who bears the cost of damage to the goods (broken china) when there is bad packaging of the goods when sending them back to the store (the customer returns the goods because he doesn't like the product)."

In this case, the explanation is in favor of the seller. Because if it is the consumer who sends back the items then he is responsible for them - both for preparing them for shipment and choosing the method of delivery.

The above-mentioned example - shipping china - concerns another important issue. Goods of this type are marked with warning stickers, and they also need to be very well protected from damage (bubble wrap, fillers, extra cartons, etc.). This type of package is usually more expensive and can not be sent back in the regular mail. How to proceed?

The explanation is the Law on Consumer Rights. If the product cannot be sent back in the normal way by mail - the customer must be notified of the estimated cost of returning the goods. It is incumbent on the seller to assess whether the goods offered by him fall under this case. This certainly applies to bulky items and, in the case of the aforementioned porcelain, one should additionally check whether the regulations of the Polish Post allow sending such products by regular mail. If this is the case - it is also incumbent on the seller to inform the buyer of this, and the lack of such information will result in an obligation on the part of the seller to cover the higher costs of returning the goods.

"Article 12 of the Law on Consumer Rights [Information obligations of the trader in off-premises distance contracts].

(1) At the latest at the time the consumer expresses his will to be bound by a distance or off-premises contract, the trader shall inform the consumer in a clear and understandable manner about:

10) the costs of returning the items in the event of withdrawal from the contract, which shall be borne by the consumer; with respect to distance contracts, the costs of returning the items if, due to their nature, the items cannot be returned by mail in the usual manner."

Damaged shipments and liability concerns are also a common problem. Sometimes the buyer will not check the shipment upon receipt - but, for example, after a few hours and then reports the damage to the seller. The timing of the defect is difficult to determine. However, there is a presumption for one year from the time of delivery of the item that the defect was caused by the seller. The consumer is also not obliged to check the shipment at the point of receipt and make a claim right away - he can do so later.

- Store terms and conditions are a type of contract between a seller and its customer. It contains the written terms and conditions for the provision of electronic services, as well as the rules under which the sale takes place. This document must comply with applicable law, so it is a good idea to have it prepared by specialists to make sure that it adequately protects the interests of both parties, and does not contain illegal clauses that can be costly for the trader, concludes Oliwia Tomalik.