I have to completely disagree with you. It is always best to look at the actual regulations and not the "guidelines". In the regulations there is NO MENTION of "you are allowed to examine the goods as you would in a shop". The DSRs are very simple. Very unambiguous. The customer, if a consumer, can cancel for any reason. The seller has to refund in full. Whilst in possession of the goods the customer has to keep reasonable care of them.
There is nothing saying that the customer cannot open boxes, unwrap sealed packaging, (except DVDs) or even use the goods. As long as they take reasonable care. There is no provision in the regulations saying that the goods have to remain saleable.
It sucks, but it is the law.
Sure. The "examine the goods as in a shop" is in the OFT's DSR guidance document, not the DSR itself. But the way I look at it is that the OFT are the ones responsible for implementing the DSR, so if they come out with an interpretation of the regulations I'm happy to use their interpretation.
If someone purchased say, a book of crosswords off me, then filled in all the crosswords and returned it under the DSR I would tell them to take a hike. I'd wouldn't refund then take them to court over their breach of care, I would say "you've used it, the DSR only allows you to examine it, so the DSR says you're not getting a refund". If they want to take me to court because they argue the DSR allows them to do that I'd happily sit before the judge or whatever they call them in the small claims court with a copy of the OFT's own guidance document and argue my case.
I know it's just a "guidance" document, not the regs themselves, but isn't the point of the guidance document that there are some disagreements and misunderstandings about what the DSR is for and what it allows and they (the OFT) have sat down and decided how
they interpreted how it should be used? With laws don't the courts also have the ability to look at what the law was intended for and have some ability to use judgement rather than strict interpretation of the law?
The whole intention of the DSR is that comsumers can buy something without having seen it first, so it may be a different size/shape/colour/weight/texture or whatever than what they expected. So the DSR allows them to see and
examine it in the privacy of their own home, and then decide if they want to keep it or return it. They are therefore in the same position as they would be in a shop - they haven't been disadvantaged by buying at a distance. It is
not he purpose of the DSR to let them take stuff on a 7 day test drive for free then send It back. The DSR may not specifically say they can't do that, but that's almost certainly because the people that wrote it did so to make sure the big greedy companies didn't abuse the poor innocent consumer. They did not anticipate that consumers would be an outrageous bunch of p*** takers who would abuse the DSR...
I've also had discussions with trading standards about various aspects of the DSR, such as buying online and then collecting from a store. Technically, as it's a distance sale the DSR should 'legally' apply, but TS agreed that if the customer comes into the store to collect (and they are allowed to examine the goods, and allowed to cancel the goods at that time) then the DSR does not apply once they leave the store. (That was a hypothetical query btw, not an actual argument with a customer). So TS (who the OFT said are responsible for dealing with disputes over the DSR) seem to be able to take a common sense approach, rather than blindly following the regs.
So in the event that the consumer didn't accept my argument and refused to back down I would send the argument to TS, and I would expect them to back me. Then if the customer ignored that, and kept on with their stubborn instance of ignoring the OFT guidance and only reading the actual regs, then I would let them take us to the small claims court and I would take the OFT guidance document
and the Trading Standards reply. With the backing of the 'enforcers', guidance from the 'implementers' and common sense on my side I'm confident I'd win that, despite what the law actually said...
But I could be wrong. But if the customer was really trying it on I would go all the way.
