PURCHASE OF VACUUM CLEANER FROM FOREIGN COMPANY

When purchasing abroad, the "seller's country's law" primarily applies, but there are some exceptions, as highlighted in this case.

The fact that the item was used but sold as new, and goes missing during return to the seller, does not make the case any easier.

Summary of the facts and the parties' arguments:

The complainant states that on 20.04.2023, he purchased a vacuum cleaner from the respondent for 3,549 kroner. The vacuum cleaner was bought through the respondent's website. The respondent is a Danish registered company. The complainant has presented an order confirmation from the seller dated 20.04.2023. The complainant states that he received the package on 02.05.2023. The complainant paid 1,187 kroner in connection with the delivery of the package. The complainant has presented a receipt from Post i Butikk dated 02.05.2023 for 1,187 kroner, showing that "advanced VAT" amounted to 888 kroner and "customs clearance" amounted to 299 kroner.

The complainant is said to have opened the package the same day. The complainant explains that he discovered the vacuum cleaner was used and had several damages. The complainant states that he complained to the respondent the same day. Pictures of the email correspondence between the parties have been presented, where the following is referenced from an undated email from the complainant to the respondent:

"I have today received the vacuum cleaner, and to my surprise the item is not new. It has been used and is severely damaged. Pictures attached.”

The correspondence shows that the complainant sent several pictures of the vacuum cleaner to the respondent. The pictures show marks/damages in several places on the vacuum cleaner. The respondent replied on 03.05.2023 by stating that the complainant had to report the damage within 48 hours if it was a transport damage. To this, the complainant maintained that it was not a matter of damage occurring during transport. He pointed out that the vacuum cleaner "had been previously used and damaged, as you can see from the pictures".

The correspondence further shows that on 05.05.2023, the respondent claimed that the vacuum cleaner the complainant was complaining about was not the respondent's vacuum cleaner. The complainant, however, referred to a link from sporing.bring.no and maintained that it was the same package, and that the respondent, as the seller of the product, was responsible to the complainant.

The parties did not reach an agreement, and the complainant brought the case to mediation at the Consumer Authority. The respondent did not respond during the mediation, and the case was closed as unresolved by the Consumer Authority's letter of 27.10.2023. The complainant states that he later received a return label from the respondent, upon which he returned the item.

According to the complainant, however, the respondent has claimed that the item has not been received. On this basis, the complainant demands the cancellation of the purchase with a refund of 3,549 kroner and compensation for expenses related to receiving the package of 1,187 kroner. He demands interest on arrears in all cases.

The respondent rejects the complainant's claim. The respondent maintains that the vacuum cleaner, which according to the complainant has been returned, has not been received. The respondent asserts that after investigations, it appears that the complainant did not return the product in accordance with instructions, resulting in the vacuum cleaner being lost/not delivered.

According to the respondent, the company asked the complainant to contact the shipping company for assistance in locating the vacuum cleaner since he is the one who returned it. The respondent explains that the complainant did not provide the respondent with any update after this. In response, the complainant asserts that the respondent sent him a return label and informed him that a transport company would pick up the package from his home.

The complainant explains that he stayed home on two occasions for the package to be collected, but no one came to pick it up. The complainant explains that he therefore suggested that he could send the package himself from the Post Office.

According to the complainant, the Post Office informed him that the information on the return label was incorrect, but the Post Office stated that the package could still be sent to the respondent. The complainant explains that the shipping company was GLS and that Bring is responsible for deliveries in Norway. Furthermore, the complainant maintains that he consulted with the Post Office after the respondent claimed that the package had not been received, where the Post Office allegedly informed him that the package was lost.

Claim:

The complainant has submitted a claim for rescission of the purchase with a settlement of 3,549 kroner. Alternatively, the complainant demands a price reduction of 3,549 kroner. The complainant claims compensation of 1,187 kroner for both cases. He also demands interest on arrears for all claims.

The committee views the case as follows:

The respondent is a Danish registered company. According to the Act on the Handling of Consumer Complaints in the Consumer Authority and the Consumer Complaints Committee, a case brought before the Consumer Complaints Committee shall be dismissed from processing “if the opposing party cannot be sued in Norwegian courts.” It is therefore a prerequisite for the processing of the complaint that the complainant can file a lawsuit against the respondent in Norway. According to the Dispute Act, disputes in international matters can only be handled by a Norwegian court if “the case has sufficient connection to Norway.” Furthermore, the Dispute Act states that the Lugano Convention of 2007 “applies as law,” meaning as Norwegian law. Denmark is a party to the Lugano Convention. The rules in the convention are therefore significant for the Norwegian courts' access to handle the case against the respondent. The main rule of the convention is that companies can be sued where they have their main office. However, there are special rules for consumer contracts. According to Article 16, the consumer can choose to file a lawsuit against their contracting party in the court of the convention state where this party is domiciled or in the courts of the convention state where the consumer is domiciled. The complainant is domiciled in Norway and can therefore file a lawsuit against the respondent in Norway.

The committee then considers whether the Consumer Complaints Board has the competence to handle the case. According to the Consumer Complaints Act, the Consumer Complaints Board shall handle complaints about the purchase of goods and services if the agreement is made between a consumer and a trader who is established or directs their business towards consumers in Norway. The preparatory works to the Consumer Complaints Act state the following:

«The law also applies to complaints between consumers in Norway and traders who are established in another state and who direct their business towards consumers in Norway.»

The essential point is therefore who the trader directs their business towards. The committee finds it clear that the respondent must be considered to direct their business towards consumers in Norway. It is noted that the item is purchased from a website in Norwegian, with a Norwegian domain, where Norwegian prices are also used. Under the website's section «Countries/regions», the Norwegian flag is included as one of fifteen flags. The case thus falls within the Consumer Complaints Board's area of activity.

The case concerns a purchase between a trader and a consumer. The complainant primarily demands the cancellation of the purchase, as he believes the vacuum cleaner is afflicted with a legal defect. It is undisputed that the complainant received a return label from the respondent to return the item, without the respondent having received the package. As the case is presented, the committee finds no evidence that the respondent has acknowledged the defect or that the parties have entered into an agreement to cancel the purchase. The committee therefore first considers whether the vacuum cleaner is defective. According to the Sale of Goods Act § 15, the item shall comply with the requirements for type, quantity, quality, other characteristics, and packaging as stipulated by the agreement. It is stated that the item shall correspond to what the consumer has reason to expect when purchasing such an item in terms of durability and other characteristics. Otherwise, there is a defect.

The complainant has presented several pictures of the vacuum cleaner, showing that the vacuum cleaner has clear marks and damages. Given the short time that passed from when the complainant collected the item, the committee assumes that the vacuum cleaner was received by the complainant with the damages shown in the presented pictures. In the committee's opinion, the damages shown in the pictures indicate that the vacuum cleaner is used. The committee finds it clear that the vacuum cleaner was not in the condition the complainant could expect when purchasing a new vacuum cleaner. Therefore, there is a legal defect in the purchase.

The effects of rescission are that the parties' obligation to fulfil the agreement ceases and that received performances must be returned. Rescission of the purchase presupposes that the item can be returned in "substantially the same condition and quantity." This is not possible, as the vacuum cleaner has been lost during the return. However, there are certain exceptions to the requirement for return.

According to fkjl. § 51, the complainant is nevertheless not prevented from rescinding the purchase if "the reason it is impossible to return the item in substantially the same condition and quantity is […] circumstances not attributable to the consumer."

The parties agree that the complainant was sent a return label from the respondent prior to the return shipment. The committee further assumes the complainant's undisputed explanation that it was a shipping company that was supposed to collect the package from the complainant, but the package was not collected from the complainant as agreed on two occasions.

As the committee understands it, the parties then agreed - after a suggestion from the complainant - that the complainant could send the package to the respondent himself. The package has since been lost during the return shipment. Based on this fact, the committee believes that the complainant has done what can reasonably be expected of him in an attempt to return the item to the respondent. The reason the package has not reached the respondent is mainly due to circumstances on the respondent's side, according to the committee.

The complainant is therefore not precluded from cancelling the purchase. Cancellation requires that there is a significant defect, which the committee clearly finds to be the case.

The complainant is therefore upheld in the claim for cancellation of the purchase. The complainant further claims compensation of 1,187 kroner. According to the law, the consumer can claim compensation for financial loss incurred as a result of a defect. In Norwegian and Nordic legal theory, it is also assumed that compensation can be given for expenses that are considered wasted or unnecessary due to the seller's breach. Previous practice shows that similar principles have been applied in the Consumer Complaints Committee. The complainant has paid 1,187 kroner upon delivery of the item, which relates to customs clearance expenses and 'advanced VAT'. Expenses for customs clearance of the item are not a cost incurred by the complainant as a result of the defect. However, since the purchase is cancelled, the customs clearance expense is a wasted expense, which the complainant is compensated for. As for the VAT, it is considered part of the purchase price, and thus also eligible for compensation upon cancellation of the purchase. The complainant is therefore awarded 1,187 kroner in compensation.