BY NADRAT MAZRUI
You happen to find yourself out on a stroll in a certain mall. A new clothing shop catches your eye. You walk in and look about. By chance you spot a unique piece that would suit your spouse/child/sibling/friend. Taking a rough guess you estimate a size and purchase it. Upon gifting it to its designated owner it happens to be a size too small or a size too big.
Too big, not so bad they can grow into it. Too small, a bummer! You then notice it’s not actually small it’s the zip that just won’t close. You think of returning it and remember many stores refuse refunds. This particular store had a clear sign “goods once sold cannot be returned”. You throw it in the back of your wardrobe and forget about it. Am I Right? Wrong.
Refund policies are the rules retail merchants establish to manage the process by which customers return or exchange unwanted or defective merchandise that they have purchased. A consumer according to the Consumer Protection Act is a person to whom particular goods or services are marketed in the ordinary course of the supplier’s business.
He can also be a user of a particular item or service irrespective of whether that user was a party to a transaction concerning the particular goods or service.
Kenya’s consumer rights were strengthened 5 years ago. In our above case scenario our seller is bound by the law to refund the money paid. Another scenario is taking back the outfit to the shop owner where thorough negotiations occur, back and forth heckling; finally he lets you take something else of the same price. Feeling quite lucky you give in without realizing that you have just been duped.
The refund policy and general laws that protect consumers include the Constitution under Article 46 that states, ‘Consumers have the right to compensation for loss or injury arising from defects in goods or services.’ The Article clearly stipulates that it applies to goods and services offered by public or private persons. The Consumer Protection Act provides that all the implied conditions and warranties applying to the sale of goods under the Sale of Goods Act shall apply to goods under a consumer agreement.
Sale of goods Act provides that the goods sold should be of a saleable quality and not stale. The customer can claim a refund in the event goods sold are not saleable. This Act does not bind you to accept any goods until you have examined them and are satisfied with the quality. It is therefore very important to examine and inspect goods before registering your acceptance. Ever wondered why places like Coldstone Creameries let you sample the product before purchase?
As a matter of contract law: if the merchant’s policy or sales contract clearly states ‘all sales final’ in a way that is not confusing to customers, then it is not required to accept returns on salable goods. The Competition Act states that liability in respect of unsuitable goods however, falls on the seller and the undertaking shall be liable to compensate the consumer for the loss or damage and the consumer may recover the amount of the compensation.
With regards to services the headline is that if a service provider doesn’t do what was agreed to at the beginning or does so without reasonable care we are entitled to ask them to put things right or receive a refund. Consumer rights should be taught at basic school. Everyone should know their statutory rights for shopping – the rights you have by law, which a shop can’t change.
The major rule in consumer rights regarding refunds is do take things back as quickly as possible. If something is faulty returning it speedily is crucial. Within 30 days you can usually still get a full refund, after that only expect exchange, repair or part- refund.
With faulty goods, one simply needs to prove purchase. This could be the receipt, but any other legitimate record like a bank statement is fine. Once you notice a product is faulty remember your agreement is with the shop you bought it from and not the manufacturer. Never accept when the retailer derails you. He is the one who must deal with it. Apple Inc does not know you bought a phone from Safaricom Kenya, only the Safcom retailer does. This is the oldest trick in the trade.
When a product comes as a free gift as part of the purchase, you have the same consumer protection rights as if you had bought it. Don’t think you have no rights with freebies. It’s important not just to know the rights but to also know how they work. Every time you buy something, you make a contract with the seller.
The consumer rights and consumer protection policies basically crack any nut.
Second-hand or on sale doesn’t mean second-rate. The only exception to second hand goods is where the seller points out the specific problems before you buy the products. Other than that it doesn’t mean you get second-rate rights. When the seller has stated all the flaws of a product it’s basically a case of caveat emptor or buyer beware.
Online shoppers are said to have more retail rights. Their purchases are often protected against loss or damage in transit and they can get a refund if their items do not live up to their online promise. Knowing these rights makes solving disputes with retailers a whole lot easier.
Many of us have bought something only to later decide it is unsuitable. The shop is under no obligation to take your goods back simply because you changed your mind. In regards to the original packaging of a product it all depends on the question whether it was reasonable for you to open the packaging. The seller can easily knock clean cash off the refund if they think you opened the product unnecessarily as they can claim it reduced its value.
On the surface, when one receives a gift they have no contract with the seller and cannot return it. It is the person who pays for the item who has the contract and will need to sort out any problems. As with other rights, stores do often provide over and above their obligation so they may help with a faulty gift. There is however no harm in remembering to tell them it is a gift.
While the legal protection offered to consumers is strong, it doesn’t matter at all if the seller won’t obey. Enforcement isn’t always easy with consumer laws and sometimes the buyer is forced to settle his own problems.
Before going to ask for a refund ask yourself whether you want to exchange the goods/service, if you want a full refund or if you simply want compensation. If so it is best to know a refund of what kind. Another thing is to stop using the product as soon as you can. If you’re deemed to have accepted the goods, you’re unlikely to get a full refund.
It is simply not a walk in the park however as there are also a number of ways that consumers commit return fraud. Not all return fraud is distinguishable from legitimate returns. Someone who has a hard time deciding on what clothes to buy and makes frequent trips to the store and frequent returns is not trying to game the system. There are however those who buy a formal gown once, wear it and then return it the next day after the end of its duty. These are the ones who defraud the merchant.
Returned merchandise is either marked down or thrown away and often incurs hidden costs associated with being restocked. Although consumer rights are to be protected, equity only protects those with clean hands. The common frauds are:
Wardrobing or renting. This is buying clothes or other items for one- time use and then returning them.
Stolen goods. Returning goods shoplifted from the same store or somewhere else.
Fraudulent receipts. Using a reused, found, stolen or altered receipt to return goods. It can also be where one returns a product to a store that stocks it at a higher price in order to make a profit.
Employee fraud. Manipulation or assistance to commit fraud from an employee of the company.
Price switching. Fixing a higher- priced tag on a product in hopes of returning it for a higher refund.
Consumers who are caught engaging in return fraud may face shoplifting or theft charges, as long as evidence exists that proves an actual crime took place. Some may be impossible to prove but surveillance cameras do provide ambient proof that could be the smoking gun in such cases. However, not all is lost for the seller as the Competition Act provides a number of defenses that are to his aid in cases where the default in the goods is not to his doing .
It shall be his defense if he can establish that the defect did not exist at the time of the supply of the goods, they do not have any defect as they have complied with a standard system, or that the defect is attributable to the design, markings or instructions given by the manufacturer. Be careful with this one however lest they pull the manufacturers ghost trick on you.
The next time you think of returning poor or faulty goods imagine yourself walking into the shop covered up in your shiny suit of consumer rights armour.
