Lightning Law Interpretation | Does dip in ink and test writing affect secondary sales? The return of a 5,500 yuan online fountain pen was rejected by the lawyer: There should be no reason to return it
2024-08-07
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Qilu.com Lightning News, August 6th. Recently, Mr. Wang spent 5,500 yuan to buy a Montblanc Meisterstuck series gold-plated 0.5mm fountain pen at the Tmall Montblanc official flagship store. After receiving the goods, Mr. Wang dipped the ink to test the thickness of the strokes and felt that the words he wrote were a bit too thick. Mr. Wang then contacted the Tmall Montblanc official flagship store and wanted to apply for a seven-day no-reason return, but the customer service refused to refund on the grounds that the fountain pen had been used. Its staff said that one of the standards for seven-day no-reason return and exchange is not to affect the secondary sale, and it is necessary to ensure that the goods are in the original and undamaged state. As a writing tool, the fountain pen is quite special. Once the nib is dipped in ink, there is no way to restore it to the original factory state, which will affect the secondary sale. And the "After-sales Notice" at the end of the product details page reminds: "Please dip the writing tool in clean water and try it out as soon as possible after receiving the work. After the work is confirmed to be correct, add ink for use. If the work is tested with ink, it is not supported for refund." At present, the two parties have not reached an agreement.
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In this regard,Gong Xingqiang, lawyer at Shandong Guoyao Qindao (Jinan) Law FirmAnalysis and interpretation from a legal perspective:
When consumers purchase products through online shopping platforms, the relevant provisions of the Civil Code of the People's Republic of China and the Consumer Protection Law shall apply. Among them, Article 25 of the Consumer Protection Law stipulates the reasons and restrictions for consumers to return goods without reason within seven days from the date of receipt of the goods, namely: "If the operator sells goods through the Internet, television, telephone, mail order, etc., consumers have the right to return the goods within seven days from the date of receipt of the goods without stating the reason, except for the following goods: (a) customized by consumers; (b) fresh and perishable; (c) digital goods such as audio-visual products, computer software, etc. downloaded online or unpacked by consumers; (d) delivered newspapers and periodicals. In addition to the goods listed in the preceding paragraph, other goods that are not suitable for return due to the nature of the goods and confirmed by the consumer at the time of purchase are not subject to unconditional return."
First of all, it should be made clear that for writing tools, inking and testing is a normal operation for consumers to test products and is a basic right of consumers. If consumers use appropriate methods to test and take reasonable measures to clean the products after the test, and the test is not enough to affect the secondary sale, the operator shall perform the "seven-day no-reason return and exchange" service agreed in the contract.
Secondly, the "after-sales notice" at the end of the product details page falls under Article 496 of the Civil Code of the People's Republic of China, which stipulates the standard terms, namely, "terms prepared in advance by the parties for repeated use and not negotiated with the other party when the contract is concluded." Therefore, when selling writing tools, the Montblanc Official Flagship Store should make special instructions on the tips for trial writing specifications, and should use reasonable methods such as words, symbols, fonts, etc. that are usually sufficient to attract the attention of the other party to remind the other party of the "inking trial writing does not support returns" clause that has a significant interest to the other party. If the Montblanc Official Flagship Store fails to perform its reminder or explanation obligations, resulting in consumers not noticing or understanding the terms that have a significant interest to them, then consumers can claim that the terms do not become part of the contract.
At the same time, Article 26 of the Consumer Protection Law stipulates that if an operator uses standard terms in its business activities, he shall bear obligations such as safety precautions and risk warnings; an operator shall not exclude or restrict consumers’ rights through standard terms, notices, declarations, store notices, etc., otherwise the contents listed in the terms shall be invalid.
Therefore, since the "After-Sales Instructions" at the end of the product details page does not use obvious signs that are sufficient to attract consumers' attention, the Montblanc Official Flagship Store has no right to claim that it has fulfilled its obligation to provide reminders or explanations and refuse to fulfill its "seven-day no-reason return" obligation solely on this basis.
Lightning News reporter Zhang Wei reports
