Empty box delivered?

[Lobster]

Not actually ebay, but as folk here know all about this stuff I hope I
can be excused...

SWMBO ordered a birthday present for somebody from an online business,
but the recipient reported that an empty box had been delivered - turns
out the box had become open in transit and the contents gone missing.
Presumably deliberately and nicked, but I can't say whether or not it
was accidental and the result of poor packing.

It further turns out that one of the recipients' kids signed for the
delivery, not knowing or realising that they were acknowledging delivery
of nothing. I don't know whether it would have been immediately obvious
that the delivery was of 'nothing' until it was unpacked etc after the
delievry guy had left. Nor do I know who delivered it. (Truth be told,
the kid who accepted delivery probably wouldn't even have known that you
don't do so if a delivery *is* obviously 'nothing'.)

SWMBO complained to the supplier, who have told her to take a hike since
as far as they are concerned, the shipment was delivered, end of story.
Because this was a birthday gift SWMBO didn't want to, and won't, get
the recipient involved any further with the whole issue, particularly in
view of the kid signing for the delivery and the likelihood the finger
will be pointed at him, so she has since paid for a new gift to be
delivered. Yes, I know :(

Just wondered whether the suppliers' action is kosher here? My guess is
it might depend on how obvious it was that the package was empty at the
point of delivery. How about the fact that it was signed for by an
under-18? It's all somewhat academic now as I say, but am interested to
know.
--
David

[Apellation Controlee]

If the supplier isn't even interested in discussing the matter, it
would be the last time, etc., ... legally correct or not. In fact
naming and shaming would be appreciated, and might perhaps teach them
the value of public relations.

As for what actually happened, if the packaging failed in transit, it
can't have been up to much. Parcel tape's cheap enough.

[Simon Finnigan]

Not sure on the legal side of things, but an escalated complaint to the
supplier along with an attempt to involve the press would be the way I went
about dealing with this. Most companies don't want the bad press of
effectively stealing a child's birthday present, which is how this could be
reported.

[Niel Humphreys]

"Simon Finnigan" <simonf...@hotmail.com> wrote in message
news:602641060390221684.823212...@news.individual.net...

Also for �2 you can send them a solicitor's "letter before action" to see if
it scares them.

http://www.thomashiggins.com/default.aspx
A very useful service to use when someone's trying it on generally.

--

Cheers
Niel H

[Richard Perkin]

Lobster <davidlobs...@hotmail.com> wrote in
news:%xlkt.56537$p05....@fx21.fr7:

> ...as folk here know all about this stuff...


I suggest you post the question to uk.legal.moderated
I believe you will get a well informed answer.

Hope this helps

--
Richard Perkin
To email me, change the <AT> in the address below
richard.perkin<AT>gmail.com

It's is not, it isn't ain't, and it's it's, not its, if you mean it
is. If you don't, it's its. Then too, it's hers. It isn't her's.
It isn't our's either. It's ours, and likewise yours and theirs.
-- Oxford University Press, Edpress News

[Peter Crosland]

Assuming it is a genuine business to consumer transaction then the law
is quite clear. The supplier is legally liable for any loss until it is
safely delivered to the buyer. It is the supplier is responsible for the
actions of the courier. The relevant law is

Sale of Goods Act as amended by the Sale and Supply of Goods to
Consumers Regulations 2002.

Section 20 Passing of risk

(4) In a case where the buyer deals as consumer... the goods remain
at the seller's risk until they are delivered to the consumer.

I suggest she quote this to the supplier and files claim against them
using the Small Claims track if they refuse. Should �100 or more then
and she paid by credit card then the card company is also liable.

--
Peter Crosland

[Brian Watson]

"Lobster" <davidlobs...@hotmail.com> wrote in message
news:%xlkt.56537$p05....@fx21.fr7...

> Not actually ebay, but as folk here know all about this stuff I hope I can
> be excused...
>
> SWMBO ordered a birthday present for somebody from an online business, but
> the recipient reported that an empty box had been delivered - turns out
> the box had become open in transit and the contents gone missing.
> Presumably deliberately and nicked, but I can't say whether or not it was
> accidental and the result of poor packing.

I received an empty box from Staples. It had plainly been roughly treated en
route and resealed.

That it weighed bugger-all plainly meant nothing to the driver, because the
intention MIGHT have been to deliver one VERY important sheet of paper in a
ridiculously large box.

Anyway, I insisted he wait until I opened it and showed him that the two
cartons of stiffened enveloped to which the packing note referred were not
inside.

I endorsed his pad with "empty box" and got on to Staples.

About a month later, after they had cocked-up the matter further to a
ridiculous degree, I got my envelopes plus some extra free ones.

The importance of NOT letting someone else sign for your deliveries, or
signing without checking anything that looks a bit dodgy, cannot be
overstated.
--
Brian
"Fight like the Devil, die like a gentleman."

[Scion]

Brian Watson put finger to keyboard:

> "Lobster" <davidlobs...@hotmail.com> wrote in message
> news:%xlkt.56537$p05....@fx21.fr7...
>> Not actually ebay, but as folk here know all about this stuff I hope I
>> can be excused...
>>
>> SWMBO ordered a birthday present for somebody from an online business,
>> but the recipient reported that an empty box had been delivered - turns
>> out the box had become open in transit and the contents gone missing.
>> Presumably deliberately and nicked, but I can't say whether or not it
>> was accidental and the result of poor packing.
>
> I received an empty box from Staples. It had plainly been roughly
> treated en route and resealed.
>
> That it weighed bugger-all plainly meant nothing to the driver, because
> the intention MIGHT have been to deliver one VERY important sheet of
> paper in a ridiculously large box.

I once ordered a Dell laptop memory chip. I got two boxes, both about the
size of a bread bin, delivered by courier.

The first box contained the memory chip, the second contained the invoice.

[Peter Parry]

On Wed, 15 May 2013 16:42:45 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

>Assuming it is a genuine business to consumer transaction then the law
>is quite clear. The supplier is legally liable for any loss until it is
>safely delivered to the buyer. It is the supplier is responsible for the
>actions of the courier.

The law is indeed quite clear, proving that on balance of probability
that you received an empty box in the circumstances described isn't.
The seller has a signed receipt for the goods. The courier has a
signed receipt to say the goods were delivered to the correct address.
The seller is being perfectly reasonable in saying that the
requirements of the SoGA have on the face of it been met.

The seller however has an empty box. It isn't a question of liability
so much as burden of proof. Some relevant factors might be things
like how long after receipt was it noticed the box was empty and what
was done when it was noticed. For example a phone call to the
carriers shortly after delivery might be considered more indicative of
the box being empty than one made a day or so later. The OP could
indeed go to court but whereas normally non delivery is simple it is
far from clear in this case that they would win.

[soup]

Brian Watson wrote:
>
> Anyway, I insisted he wait until I opened it and showed him that the two
> cartons of stiffened enveloped to which the packing note referred were not
> inside.

Rather than have the courier/deliveryman wait while I open and check the
contents I typically write UNEXAMINED on any delivery note this (whilst
probably not legally binding) tends to make businesses believe you when
you phone them later that day/next day and say "oh X was
missing/scratched/damaged on arrival".

[Peter Crosland]

The law makes it clear that the seller is responsible until the goods
are delivered to the seller. Delivering them to the address does not
meet that requirement. The risk that something like the situation
outlined by the OP may occur is one that businesses take by not ensuring
that they deliver only to the intended recipient. To avoid liability the
seller would have to prove that they did deliver it to the buyer
personally. The burden of proof is on their shoulders not the buyers.

This may seem one sided, and it probably is, but that is what the law
requires.


--
Peter Crosland

[Peter Parry]

On Thu, 16 May 2013 16:05:08 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

>On 16/05/2013 10:53, Peter Parry wrote:


>> The seller however has an empty box. It isn't a question of liability
>> so much as burden of proof. Some relevant factors might be things
>> like how long after receipt was it noticed the box was empty and what
>> was done when it was noticed. For example a phone call to the
>> carriers shortly after delivery might be considered more indicative of
>> the box being empty than one made a day or so later. The OP could
>> indeed go to court but whereas normally non delivery is simple it is
>> far from clear in this case that they would win.
>
>The law makes it clear that the seller is responsible until the goods
>are delivered to the seller. Delivering them to the address does not
>meet that requirement.

Yes it does. The word "Delivery" in the SoGA has a specific meaning
defined within the act and is the 'voluntary transfer of possession
from one person to another". In most cases this is effected by the
seller allowing the buyer to collect the goods. When you go to buy a
tin of beans the seller delivers them to you by allowing you to carry
them away after payment. You cannot claim they were not delivered if
instead of carrying them yourself another person carries them for
you. Similarly if that other person drops your beans on the way to the
car and breaks them it is not the seller who is at risk simply because
you were yet to receive the tin. Delivery in this technical sense does
not necessarily even mean physical delivery.

Delivery may take several forms, it may be the physical transfer of
possession. It can also be constructive delivery , for example by
delivering a document of title to a boat. It may also take place by
handing over the means of control, for example the keys to a car.
Finally, it may be by attornment, where a third party acknowledges
that he holds the goods on behalf of the buyer. It is this last
situation which occurs when someone at the delivery address takes the
goods from a carrier. Who that person is is immaterial, delivery to
the buyer has taken place.

>The risk that something like the situation
>outlined by the OP may occur is one that businesses take by not ensuring
>that they deliver only to the intended recipient.

As virtually no carrier will deliver to a person, only to an address,
that would be rather difficult. It would also make it impossible to
"deliver" goods by Royal Mail as the postal services act specifically
defines delivery as taking place when the item is delivered to the
address, not the person.

>To avoid liability the seller would have to prove that they did deliver it to the buyer
>personally.

No they don't, they simply have to prove it was delivered to the place
specified in the contract, the "delivery address". If "delivery" were
to take place only when the buyer personally received the goods
legislation such as the Distance Selling Regulations would be chaotic.
"I'm returning these goods two months after purchase because I was on
holiday when they were delivered to my address and didn't get back
until a week ago". Moreover it would also make all forms of
acknowledged or "signed for" delivery meaningless.

[Peter Crosland]

The fact is that unless, and until, the goods are delivered to the buyer
has not got possession of them. I agree that there are significant
practicalities in doing that but the difficulties do not alter matters.
The reality is that in a tiny minority of cases there is a problem. The
sellers take that risk because the costs are much smaller than those
that would accrue if they used a system that ensured delivery to the
buyer. In fact the last time I had a mobile phone delivered the courier
was very careful to ask for my name and checked the signature agreed. I
asked him about this and he told me that he had strict instructions to
check though this did not extend to asking for proof of identity.

The suggestion that this would allow people to use such as you suggest
above is frankly sheer fantasy.

--
Peter Crosland

[Peter Parry]

On Thu, 16 May 2013 21:21:58 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

>On 16/05/2013 19:29, Peter Parry wrote:

>> No they don't, they simply have to prove it was delivered to the place
>> specified in the contract, the "delivery address". If "delivery" were
>> to take place only when the buyer personally received the goods
>> legislation such as the Distance Selling Regulations would be chaotic.
>> "I'm returning these goods two months after purchase because I was on
>> holiday when they were delivered to my address and didn't get back
>> until a week ago". Moreover it would also make all forms of
>> acknowledged or "signed for" delivery meaningless.

>The fact is that unless, and until, the goods are delivered to the buyer
>has not got possession of them.

Wrong. He gains possession when the contract says so. I can buy a
boat without ever visiting it, possession will pass to me when agreed
and from that point on the boat is mine and at my risk. For this
reason the contract will often specify a precise time that delivery
will take place so that insurance can be arranged from that time. To
suggest it remains at the sellers risk because I have not physically
laid a hand on it is absurd.

If the buyer arranges for goods to be delivered to an address (which
need not be his home) then when delivery is affected at that address
the contract is complete and risk in the goods passes to the buyer.

By your logic in this case the seller would have been permanently
responsible for the goods as they were never intended to be seen or
used by the buyer and were sent to another address entirely.

> I agree that there are significant
>practicalities in doing that but the difficulties do not alter matters.

Indeed they do not as your interpretation is not correct. There is
nothing in the specific definition of "delivered" in the SoGA which
requires the goods to be personally handed to the buyer or for the
buyer to be present when they are delivered. There is no case law
which states goods must be handed personally to the buyer before
delivery can be effected. You are trying to substitute the common
interpretation of the word delivered for the quite specific definition
contained within the SoGA.

>The reality is that in a tiny minority of cases there is a problem.

If proof of delivery required proof the package was handed to the
buyer personally and no one else there would be more than a tiny
minority of cases.

>The sellers take that risk because the costs are much smaller than those
>that would accrue if they used a system that ensured delivery to the
>buyer.

Why then do sellers of high value items use delivery methods such as
Royal Mail Special Delivery which by law define delivery as to the
premises not to the person? Why is it that whenever I have attended a
small claim hearing proof of delivery to an address has always been
accepted by the court as proof the item was delivered to the buyer
despite the buyer furiously denying they had ever seen the package (a
mobile phone)?

Why is there not a single guidance note from OFT or others mentioning
that delivery to an address is meaningless and it has to be to the
buyer personally?

> In fact the last time I had a mobile phone delivered the courier
>was very careful to ask for my name and checked the signature agreed. I
>asked him about this and he told me that he had strict instructions to
>check though this did not extend to asking for proof of identity.

Not a lot of use then was it?

[Peter Crosland]

Once again you are using irrelevant suggestions remote from the
circumstances under discussions. I am not, and never have, suggested
that the effect of law was not absurd. I simply pointed out that
delivery to the buyer means just that. I am well aware of all the
absurdities of such a definition but that does not alter what it is. It
just illustrates just how difficult it is to draft legislation without
the being unexpected, or unanticipated, consequences. As for what you
may, or may not have seen in court each case will, if it comes to
litigation, be decided on the facts of the individual case, subject of
course to any established precedents. In the OP's case I don't think
that the seller would be able to establish that the goods were delivered
which is really the fundamental issue. Depending on the value of the
item the seller might well take a pragmatic approach and decide that the
cost of defending a small claim would be more than the cost of settling it.


--
Peter Crosland

[Peter Parry]

On Fri, 17 May 2013 09:26:14 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

>On 16/05/2013 23:23, Peter Parry wrote:


>> Why is there not a single guidance note from OFT or others mentioning
>> that delivery to an address is meaningless and it has to be to the
>> buyer personally?

>Once again you are using irrelevant suggestions remote from the
>circumstances under discussions. I am not, and never have, suggested
>that the effect of law was not absurd. I simply pointed out that
>delivery to the buyer means just that.

This is your fundamental error. In the SoGA "delivery to the buyer"
means "the 'voluntary transfer of possession from the seller to the
buyer". That is effected by the items being delivered to the address
specified in the contract. In this case of course the goods were
never going to be delivered to the buyer at all.

> I am well aware of all the absurdities of such a definition

There are no absurdities other than what you think the definition of
"delivered" in a SoGA context is. Don't you find it surprising no one
would ever mention such a fundamental aspect of the law if in fact it
existed? To suggest that the seller remains in possession of the
goods and at risk of damage to them after they deliver those goods as
specified in the contract is rather silly.

>As for what you may, or may not have seen in court each case will, if it comes to
>litigation, be decided on the facts of the individual case, subject of
>course to any established precedents.

Can you find a single precedent where a court decided "delivery to the
buyer" meant the item had to be received by the buyer personally?

In each case, of about a dozen over a few years, which I observed or
took part in the buyer claimed they had not received goods. The only
evidence they had in fact received the goods was a signed Special
Delivery receipt (one even signed "D Duk" and several clearly not
signed by the recipient as they were names of a different sex ) plus a
statement from a postal worker that they had delivered the goods to
the address specified. In each case the judge ruled the goods had
been delivered to the buyer and ruled against them. If your
interpretation of "delivered" was correct do you not find it
surprising that of several different judges in several different
courts not one so much as mentioned a need to deliver to the buyer
personally? In each case the claimant could not (and was not asked
to) prove the goods were delivered to the buyer, only to the address
specified in the order.

In the reams of consumer advice given out by various agencies such as
the OFT do you not find it surprising that not one mentions that
unless the buyer is there in person the goods have not been delivered?

>In the OP's case I don't think that the seller would be able to establish that the goods were delivered
>which is really the fundamental issue.

In the OP's case with your absurd definition the goods could never
have been delivered because the buyer never intended to receive them.
They were a present sent to a different address from his own entirely.

[Peter Crosland]

You are missing the point yet again! On wheat basis are you saying that
the delivery of an empty box constitutes delivery?

--
Peter Crosland

[Roland Perry]

In message <brednb0PE92zhAvM...@brightview.co.uk>, at
12:49:05 on Fri, 17 May 2013, Peter Crosland <g6...@yahoo.co.uk>
remarked:

>On wheat basis are you saying that the delivery of an empty box
>constitutes delivery?

The basis that the supplier can repudiate the consumer's claim that it
was in fact empty.
--
Roland Perry

[Peter Crosland]

Which is the nub of the problem. How do you suggest the seller can do
that assuming the OP has told all the facts? The only way the OP is
going to find out is to take action against the seller.

--
Peter Crosland

[Roland Perry]

In message <TeidnWueOun_rgvM...@brightview.co.uk>, at
14:40:52 on Fri, 17 May 2013, Peter Crosland <g6...@yahoo.co.uk>

remarked:
>>> On wheat basis are you saying that the delivery of an empty box
>>> constitutes delivery?
>>
>> The basis that the supplier can repudiate the consumer's claim that it
>> was in fact empty.
>
>Which is the nub of the problem. How do you suggest the seller can do
>that assuming the OP has told all the facts?

To repudiate the claim just involves writing a letter.

>The only way the OP is going to find out is to take action against the
>seller.

Find out what?

--
Roland Perry

[Peter Parry]

On Fri, 17 May 2013 12:49:05 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

I have never said that. As I said in my first response :-

"The law is indeed quite clear, proving that on balance of probability
that you received an empty box in the circumstances described isn't.
The seller has a signed receipt for the goods. The courier has a
signed receipt to say the goods were delivered to the correct address.

The seller is being perfectly reasonable in saying that as far as he
is concerned the requirements of the SoGA have on the face of it been
met"

You replied claiming that "The law makes it clear that the seller is

responsible until the goods are delivered to the seller. Delivering
them to the address does not meet that requirement."

It was that incorrect statement we were discussing.

No one has suggested that delivering of an empty box constitutes
delivery of the goods. The problem the OP has is that the seller (one
presumes) packed and dispatched the goods. The courier transported
and delivered them to the final address. In the normal course of
events that would indicate delivery to the buyer (as defined in the
SoGA) had taken place.

To prove this the courier had a signature for the acceptance of the
package at its destination. Apparently neither the recipient nor the
carrier noticed at the time of delivery that the box was empty or that
it was unsealed or that it had been tampered with (if it had been).

Some unknown time later someone else examined the box and found it was
empty. They notified the buyer who contacted the seller who, not
unreasonably, said they had a signature for the parcel with no comment
about its state and as far as they were concerned they had evidence
they had delivered the goods as required.

No one is disputing that _something_ was delivered, the question is
was it an empty box or the goods ordered? As I said, it comes down
to who would be believed. It is not a simple obvious non-delivery and
by no means a simple case which the OP would be guaranteed to win.

One thing is sure, if they tried to claim based on the premise that no
delivery of anything had taken place simply because the buyer, who was
never intended to get the goods, hadn't been there to receive the
goods which were not sent to them they would lose.

[The Older Gentleman]

Peter Parry <pe...@wpp.ltd.uk> wrote:

<snip>

Digging back deep into my legal training, decades ago, I have to say I
side with you on this.

--
Street Triple 800SS XT660 Tenere
CB400F TS250 x3 GN250 CB125S
chateaudotmurrayatidnetdotcom
Have you tried switching it off and on again?

[Peter Crosland]

On 17/05/2013 16:54, The Older Gentleman wrote:
> Peter Parry <pe...@wpp.ltd.uk> wrote:
>
> <snip>
>
> Digging back deep into my legal training, decades ago, I have to say I
> side with you on this.

Enough! Parry never recognises a wind up when he sees one.

--
Peter Crosland

[PJK]

On 17/05/2013 18:46, Peter Crosland wrote:

>
> Enough! Parry never recognises a wind up when he sees one.

That's as lame as it gets.

[Peter Crosland]

Far from it. Parry is notorious for his pedantry, and sophistry. The
bottom line is that getting a signature for an empty box does not
constitute delivery of the goods.

--
Peter Crosland

[Roland Perry]

In message <qPWdnRDeQryIOwXM...@brightview.co.uk>, at
11:14:45 on Sun, 19 May 2013, Peter Crosland <g6...@yahoo.co.uk>
remarked:

>The bottom line is that getting a signature for an empty box does not
>constitute delivery of the goods.

Only if you can prove it was empty at the time.

(I received a packet here last week which had the approximate expected
weight on the outside. That's quite a good "sanity check" for both the
delivering driver and the person signing).
--
Roland Perry

[Peter Parry]

On Sun, 19 May 2013 11:14:45 +0100, Peter Crosland <g6...@yahoo.co.uk>
wrote:

>The
>bottom line is that getting a signature for an empty box does not
>constitute delivery of the goods.

No one said it did, the argument was about your series of plainly
incorrect statements:-

"The law makes it clear that the seller is responsible until the goods
are delivered to the seller. Delivering them to the address does not
meet that requirement."

"The fact is that unless, and until, the goods are delivered to the
buyer has not got possession of them."

" I simply pointed out that delivery to the buyer means just that."

Delivery to the address requested clearly does meet the "delivered to
the consumer" definition and requirement of the SoGA.

I must admit though your cunning plan worked brilliantly, I doubt if
anyone spotted that you actually agreed with that all along.

[Niel Humphreys]

"Lobster" <davidlobs...@hotmail.com> wrote in message
news:%xlkt.56537$p05....@fx21.fr7...
> Not actually ebay, but as folk here know all about this stuff I hope I can
> be excused...
>
> SWMBO ordered a birthday present for somebody from an online business, but
> the recipient reported that an empty box had been delivered - turns out
> the box had become open in transit and the contents gone missing.
> Presumably deliberately and nicked, but I can't say whether or not it was
> accidental and the result of poor packing.
>

> It further turns out that one of the recipients' kids signed for the
> delivery, not knowing or realising that they were acknowledging delivery
> of nothing. I don't know whether it would have been immediately obvious
> that the delivery was of 'nothing' until it was unpacked etc after the
> delievry guy had left. Nor do I know who delivered it. (Truth be told,
> the kid who accepted delivery probably wouldn't even have known that you
> don't do so if a delivery *is* obviously 'nothing'.)
>
> SWMBO complained to the supplier, who have told her to take a hike since
> as far as they are concerned, the shipment was delivered, end of story.
> Because this was a birthday gift SWMBO didn't want to, and won't, get the
> recipient involved any further with the whole issue, particularly in view
> of the kid signing for the delivery and the likelihood the finger will be
> pointed at him, so she has since paid for a new gift to be delivered.
> Yes, I know :(
>
> Just wondered whether the suppliers' action is kosher here? My guess is
> it might depend on how obvious it was that the package was empty at the
> point of delivery. How about the fact that it was signed for by an
> under-18? It's all somewhat academic now as I say, but am interested to
> know.
>

Contact the courier and ask them what weight they have for the parcel. If
the item would be expected to weigh 2+ KGs for instance and the courier only
has a log of the minimum 1KG weight logged when the box would have been
initially weighed at the originating depot after collection this is a very
good indication that the supplier handed over an empty box, probably in
error.
--

Cheers
Niel H

[Roland Perry]

In message <knb12f$ujd$1...@dont-email.me>, at 18:14:42 on Sun, 19 May
2013, Niel Humphreys <a...@a.com> remarked:

>Contact the courier and ask them what weight they have for the parcel. If
>the item would be expected to weigh 2+ KGs for instance and the courier only
>has a log of the minimum 1KG weight logged when the box would have been
>initially weighed at the originating depot after collection this is a very
>good indication that the supplier handed over an empty box, probably in
>error.

Might work, apart from the OP's statement that "the box had become open
in transit".
--
Roland Perry

[Fintelst...@gmail.com]

Peter Parry <pe...@wpp.ltd.uk>:

>>The fact is that unless, and until, the goods are delivered to the buyer
>>has not got possession of them.
>
>Wrong. He gains possession when the contract says so.

When Geeks Collide!
Duck, Homer; it's the Clash of the Tits.