Selling used items on the internet

[Leonardo]

An internet business offers to buy used CDs/DVDs/games etc. for very low prices (typically 30p per CD). However they offer the convenience of free collection, so it's a good way to declutter unwanted items.

But are their customers still considered to be "consumers"? If so, they would be protected by law. But if they're not legally defined as consumers, what legal protection do they have against, e.g., unfair terms and conditions?

 

[Witch consumer]

Wouldn't touch them with a barge pole at 30p a CD!

To be a consumer you would need to be buying, not selling.

Would you like to be more specific about dodgy t&c's?

 

[Leonardo]

OK, perhaps we need total clarity on the definition of "consumer": In the artlcle "Don't Cash Your Gold Until You Have Read This" it says: "According to the chief executive of Which?, this investigation has raised serious concerns regarding fair treatment of consumers by TV gold buyers." So members of the public who sell gold to businesses are described as consumers here. Is that just loose terminology? Are they or are they not?

Re dodgy T&Cs, the web site says items that fail their quality assessment will not be paid nor will they be returned. Their decision is final. That IMHO is clearly an unfair term and breaches the UCCTRs, if the transaction falls within consumer law.

If it's not caught by the UCCTRs, and you accept their T&Cs in good faith expecting an honest quality assessment but your good quality items get rejected, and you don't even have the right to get them back, where is your protection?

 

[Witch consumer]

OK I hold my hands up, apparently the word consumer applies to goods or services and you are making use of a service in this case.

I agree with you, this is unreasonable and I'm not sure at which point you enter a contract as usually this would be when goods are accepted and payment made, if goods are rejected, does the contract exist?

 

[Leonardo]

I've just come across a booklet published by the OFT entitled "Unfair standard terms" OFT143, Crown copyright 2000, which contains the following definitions:

- A consumer is an individual not acting for the purposes of his or her trade, business or profession.
- Seller or supplier means any person or organisation acting for the purposes of their business. This includes any trade or profession, and the activities of government and other public bodies.

The above definitions are crystal clear to me yet it's amazing that when I was talking to a legal helpline earlier, the guy categorically stated that a consumer is someone who BUYS something, and therefore the class of people I have described couldn't possibly be consumers and therefore could not invoke the consumer laws. Shouldn't these legal experts have this knowledge at their fingertips instead of giving erroneous advice?

Going back to your question, when goods are rejected, the terms specifically say that they will NOT be returned, nor will they be paid. So they can reject an item and neither pay you nor return the item to you, and you have no right of appeal. How fair is that?

 

[Witch consumer]

That was my point, does any contract apply until they have paid for the goods, could you then at that point rescind the agreement and insist on the return of all the goods?

As far as legal helplines are concerned, they are not particularly helpful and you would be surprised at how much some solicitors don't know, I suspect a lot of them offer this service in the hope they will convert some of the calls to clients. Often solicitors won't even take a case if it seems too much hard work.

You could try CAB who have now taken over from Consumer Direct but it is a bit of a tricky one.

Is this a personal experience or have you read it in t&c's before selling cd's to them?

Personally I think its an unfair term but my opinion means diddly-squat without clarification on whether the contract exists at that point, otherwise it appears to be legalised theft!

 

[Leonardo]

Quoting from the t&cs:

"The contract between you and musicMagpie is formed when you complete your transaction on musicMagpie, by way of submitting your order to us."

This is listing the items on their website, prior to actually sending anything to them. Further down:

"Once we have received your items, checked them and dispatched payment for them to you, then ownership of the items passes immediately and irrevocably to us."

I don't know how significant this is; could it be an attempt to make this not a consumer transaction but rather a private deal between two individuals?

Yes, it is a very recent personal experience. I was aware of the t&cs but I relied on their good faith to assess the quality of the items honestly. When I challenged their assessment, they quoted the t&cs, and said they couldn't check the item as it had already been "responsibly recycled" (whatever that means). After I protested persistently, they agreed to pay me as a "gesture of good will". However I still want to establish whether they should be investigated for contravention of consumer laws especially the UTCCR. I mean, look at these clauses in their t&cs:

"You may not transfer, assign, charge or in any way dispose of this contract or any of your rights or obligations arising under it, without our express written prior consent, which may be electronically communicated by way of email.
We may transfer, assign, charge, sub-contract or otherwise dispose of a contract, or any of our rights or obligations arising under it, at any time during the term of the contract at our discretion."

Further: "musicMagpie reserves the absolute right to vary these [t&cs] from time to time at its sole discretion." How one-sided is that?

 

[Witch consumer]

Think this is the one that proves they are aware of the law:

"Once we have received your items, checked them and dispatched payment for them to you, then ownership of the items passes immediately and irrevocably to us."

Except the ones they don't pay for, which should remain your property, regardless of those t&c's. If they don't accept them, they simply aren't theirs.

 

[Leonardo]

It's interesting to go to their Facebook page where there's loads of comments by disgruntled customers, in contrast to their web site where they only post the favourable comments. Then you look up their Trustpilot ratings and it's loads more furious customers complaining about being shortchanged, or long delays getting paid.
Thanks for all your feedback, I'm just waiting for Trading Standards to investigate them now. They've had it easy too long.

 

[Witch consumer]

Amusing similar story, a shop in a nearby town used to buy and sell vinyl albums, my oh was in there one day when a young lad came in with a pile of albums to sell, they made him a miserly offer and the oh could see he was gutted and after some torment he handed them over.

While the two rip off owners were dealing with this poor lad, my oh found and album and took it to the counter. He was given a fairly low price (although still several hundred percent mark-up on what they paid) so he snatched it up.

Once the greedy owners had taken his money and handed over the album, he said "glad I found this, it's really rare, this cover was withdrawn and a new one produced, it's worth a fortune"

They looked at each other in horror, completely sick. It was true too, the album really was worth a lot of money - serves them right!

 

[Leonardo]

That's a good story!
But it does illustrate my original post. A customer of such a shop can be either a buyer or a seller. He/she is a consumer in the eyes of the law when dealing with a trader who runs a business, whichever transaction takes place.
I came across an article on the internet which I found very helpful in explaining why people always think of a consumer as someone who buys something:

"The notion of consumer as it is known in law differs from the concept of consumer as used in marketing and sociology. In law, precise definition of the ‘consumer’ is essential in order to delimit the circle of persons entitled to extended legal protection in relations with traders whose position is stronger."

The definition of consumer in the regulations makes no reference at all to buying. I'm so disappointed to receive advice on a legal helpline that someone who sells items is not a consumer and has no protection under the consumer laws. Even after I pointed out the definition given in the OFT guide.

 

[Witch consumer]

I must admit it was my first thought but I think the difference is that this is the use of a service rather than the purchase of goods, have you been back in touch with them yet?

 

[Leonardo]

As mentioned, they quickly paid me the money they deducted as soon as I mentioned "statutory rights"! I reported the incident to Citizens Advice anyway, and they will pass it on to Trading Standards for further action regarding unfair terms etc. I also posted a review on Trustpilot, see here:
[sorry, I don't yet the privilege to post a link, but go to Trustpilot and search for musicmagpie.co.uk]

Their rating on Trustpilot is deservedly very low (2.9/10) compared to Feefo which they proudly feature on their web site (96%). From what I can gather, Feefo is by invitation only, so they only ask people they know are going to give good reviews. Even so, they still deliberately left out unfavourable reviews from the list of reviews published on their web site. That could be construed as misleading advertising surely.

 

[Witch consumer]

Just to show you what good customer service is

Musicmagpie reviews | Customer reviews of Musicmagpie

 

[Leonardo]

Thank you! I've found out what name they trade under when they sell their ill-gotten goods - they use the name Zoverstocks, but it's the same company. They sell on Amazon and Playtrade. A sly practice as it keeps their customers from knowing what suckers they've been to sell at musicmagpie's rock bottom prices.