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Lawfulness of charges?

Old 11th Dec 2014, 19:18
  #1 (permalink)  
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Lawfulness of charges?

Back in August I bought some goods online, from a well-known auction site. The seller claimed to be in the UK. The goods arrived fairly quickly, but were clearly shipped from China. At the time I didn't worry about this, as they were OK and as described.

In November I received an invoice from TNT, for 23.86. This was made up of 18 as their "fee" for processing VAT due of 5.86. There was no duty payable.

I was a bit miffed, as I'd no idea that I was buying from China and had no idea that TNT were going to charge me a massive fee for paying VAT on my behalf.

As I'd never contracted with TNT, I refused to pay the invoice, but wrote to them with a payment of the VAT of 5.86 that they had paid on my behalf, plus a "goodwill" payment of 6, so 11.86 in total. I made it clear in my letter to TNT that I had not requested that they pay this VAT bill on my behalf, neither had I entered into any form of contract with them that would make me liable to pay this fee. I finished the letter with the comment that I considered this payment of 11.86 to be reasonable and was full and final settlement of this invoice.

They cashed the cheque for 11.86 on 17th November, so I assumed they'd accepted my payment.

Today I received another invoice for 23.86, together with a letter threatening legal action for non-payment of VAT unless I pay the full amount of the invoice immediately.

Now, firstly I've paid them 11.86, to cover the 5.86 VAT due plus a goodwill payment, so if they want to take legal action then it should only be for the difference between the original invoice value and the payment already made, so the figure should be 12, not 23.86.

Secondly, I did not enter into any agreement or contract with TNT, was wholly unaware of their scale of charges, was unaware that the item ordered was being shipped from China and feel that, under English contract law they have no right to any payment from me, other than the VAT they paid. I could easily have paid the VAT myself (I have a VAT account) and would have done this had I known that the goods were being imported directly, rather than pay TNT 18 for the privilege of making a payment of 5.86 on my behalf.

So, my view is that TNT have no legal grounds for demanding this payment in the first place, as i had not entered into a contract with them, either explicit or implied. I do accept that by having paid the VAT on my behalf, even though this was not requested, I had a moral obligation to pay them for this, which I have done. I also believe that making a charge that is more than 300% of the VAT paid they are making an unfair and unreasonable charge, and that if this were included in any contract it could be construed as an unreasonable contract condition.

I have written back to them, requesting the law, or laws, that allow them to make such a charge, and to clarify why I should be liable for it, when I had made no agreement or contract with them.

As a postscript, I should add that I have dealt with the misrepresentation with the seller, and the auction site has closed their account for misrepresenting their location.

Do any of the legal eagles here have a better grasp of UK contract law and whether or not TNT have any legal grounds for recovering a payment for a service that had not been requested, or contracted for?
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Old 11th Dec 2014, 23:19
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I should demand your 11.86 back as they don't seem to have applied it to . . . well, anything.

I wouldn't pay it, but then I'm me, and I can get as bloody-minded as that lawyer that's dropping a tonne of bricks on a takeaway. It really does have a lot to do with how much spare time you can devote to a cause.

I see you paid by cheque, but I try to use Visa where possible and if needs be, register a dispute.



My battle with Sears and Sony lasted a year. I had four new 50" Samsungs tried as replacements, all of which were lacking in some way. Finally they cut me a check/cheque and I bought one from another store for quarter the price. However, there is no way a busy working person could have spent that amount of time.
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Old 11th Dec 2014, 23:33
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I should demand your 11.86 back as they don't seem to have applied it to . . . well, anything.
5.86 of the payment was to cover the VAT, something as the importer of the goods in question, VP is legally liable for.

You could always argue that according to TNT's own terms and conditions (which would have been agreed to by the sender), you are refusing to pay their charges so they should claim them from the sender of the goods.

9.3. Any customs duties, taxes (including but not limited to VAT if applicable), penalties, storage charges or other expenses we incur as a result of the actions of customs or other governmental authorities or your failure and/or the receiver's failure to provide proper documentation and/or to obtain the required licence or permit will be charged to you or the receiver of the shipment. In the event that we decide to charge the receiver and the receiver refuses to pay the incurred charges you agree to pay them to us together with our fee for the administration involved as well as any extra costs we will incur. Upon our first request you will provide a proper guarantee for any of the duties, taxes, penalties, storage charges or any other expenses set out in this condition.
TNT Express - Terms and conditions
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Old 12th Dec 2014, 00:00
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Mmmm, so they'd obviously paid your entire payment into their coffers.

If you'd clearly stated spelled out where the money should be apportioned, it seems to me that you complied with their demand for VAT To invoice you with the full amount again is just plain sharp.

What you need to find out is, if the VAT has been paid.
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Old 12th Dec 2014, 02:10
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Any contact with the auction site, they might be able to get TNT to back down or sort it. Sounds like they hosted a item not as describe.

Ebay has the same issue, for some items I like to only get if they are in aus. But unfortunately a lot comes from China, and you don't know until it gets here.
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Old 12th Dec 2014, 04:41
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Having a penchant for purchasing lots of high tech bits and bobs, I have frequently found myself purchasing goods directly from China at a small fraction of the UK cost, but having to pay similar charges for duty/VAT/handling. It is usually clear where the goods are coming from in the adverts even if there is a UK handler. It's just a case of reading the small print carefully and looking at all the details available.

Some stuff is available direct which cannot be sourced in the UK because of RoHS regulations imposed by the EU. Electronic components are particularly affected by these regulations and it can be difficult if not impossible to repair or replace certain parts without resorting to personal importing. So you effectively have no choice but to pay what is asked in terms of price, import and handling charges.

TNT and similar companies deal with countless items every day and have automated systems to collect payment, or deal with non payment. It is probably not worth your while to contest the charges, although if you do manage to speak to someone in a position of responsibility, you might get lucky and get the charge waived.

If the total cost including the handling charges came out less than you could have purchased the article for in the UK, then I would still consider that a win. Otherwise, just put it down to experience.

Good luck with your quest.
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Old 12th Dec 2014, 06:43
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Thanks for the advice, folks.

I did make it very clear in the letter I sent them that accompanied the cheque that the sum was 5.86 VAT for they had paid on my behalf, plus an additional 5 plus VAT (6) as a goodwill gesture, as I felt that I was legally liable for the VAT and should pay it.

The seller in question purported to be in Manchester, and there was nothing to indicate they were really in China at all. They didn't give the name of the shipping company, and just said that postage was free (meaning they'd included it in the price). They are no longer on the auction site, as I complained about them pretending to be in the UK, and cannot now be contacted as the order was back in August, beyond the time limit to take any action.

I'm annoyed at being deceived into buying from China when I thought I was dealing with someone in the UK, but that's not really the issue. My real issue is that TNT are trying to charge me 18 for collecting and paying a VAT charge of only 5.86.

I think this is an outrageously disproportionate charge, and as I don't have any form of contract with them I'm not sure how they expect to take legal action for my refusing to pay a part of it (as they've threatened).

Thanks for the quote from TNT's contractual terms, it seems from that it is as I thought, the contract is between the seller and TNT, not myself.

I have bought stuff online from outside the EU previously, but in each case I have had a request to pay any VAT or duty payable before the goods have been delivered. Also, IIRC, the handling charge has been a lot less, around 6 to 8 I think.

In this case, had I realised I'd have been liable for an extra 23.86 I'd have just refused to accept the goods, as the item only cost 29.30. TNT didn't give me that choice, and only asked me for this payment some two months after they'd delivered the goods. That's pretty underhand bahaviour in my view.

Having re-read the letters they've sent the wording is a bit more careful than it first seems. They make out that they will take legal action, but in a fairly circumspect way (the phrase used is "failure to make any requested payment may result in legal action"). I've written back to them, with a copy of my original letter and proof that they've cashed the cheque, and asked them for the specific law or laws under which they propose to take legal action, and for a copy of any contract they think they have with me that makes me liable for this charge.

My guess is that they won't be able to answer either of these questions, as I know of no law that allows recovery of a charge for a service that was neither requested nor part of any form of contract, and I am certain that I did not enter into a contract with them, either.
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Old 12th Dec 2014, 07:18
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Thanks for the quote from TNT's contractual terms, it seems from that it is as I thought, the contract is between the seller and TNT, not myself.
And this is why non-lawyers such as 419 shouldn't be quoting excerpts from a contract. I'm no lawyer either, but any legal expert will tell you that you have to consider the contract as a whole (as well as the underlying legislative framework), not just cherry pick bits that suit your needs, because for example it misses stuff like this .....

20.5. As a matter of course all import duties, value added taxes on goods and all other charges levied on the shipment in the destination country shall be payable to us by the receiver upon delivery of the shipment and if the receiver refuses to pay you agree to pay us these amounts in full within 7 days of us notifying you that the receiver has not paid.
So you, as the receiver are liable to the import duties. Their contractual ability to eventually claim from the sender is a form of contractual recourse for them, you remain liable in the first instance.

As others have said, if you import stuff then you can expect an invoice for customs, as they say on the Europa website :
As soon as you buy a product from a non-EU country, then effectively you become an importer and become liable to Customs and Excise Duty as well as Value Added Tax (VAT) payments.
Now, as far as TNT goes .... I've had many dealings with them both personally and in business, and wouldn't touch them with a bargepole as they've never been able to issue a correct invoice, let alone the various occasions when they've changed the service specification en-route.

The above notwithstanding, I would simply do as others have suggested..... take it on the chin, put it down to experience, and be more weary next time you buy stuff online from a minor source, especially auction sites.

Last edited by mixture; 12th Dec 2014 at 07:31.
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Old 12th Dec 2014, 07:34
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There are a few points that may have been missed.

Firstly, I didn't know I was buying from outside the UK; the seller purported to be in Manchester and was using deception to sell, with free postage, into the UK.

Secondly, I have paid the VAT due, even though I was misled by the seller, so there are no import charges owing to the government at all.

Thirdly, I have made a goodwill payment to TNT to cover their costs, but am refusing to pay them 18.00 for paying VAT on my behalf of only 5.86.

Fourthly, the charge is wholly disproportionate to the value of the goods and postage. The goods and postage cost 29.30, TNT are trying to charge me 23.86, which is over 300% of the VAT they paid on by behalf.

Finally, I have already paid more that the item was worth at the original purchase price, plus the unexpected VAT, plus the goodwill payment I've made to TNT. Paying them an additional 12.00 (which isn't what they are requesting - they are requesting another payment of 23.86) would mean I would be paying almost double what the item is worth, most of that in charges to TNT that massively exceed their own shipping charges.

I'll admit that it's a point of principle, but I am going to dig my heels in over this, as I think that TNT are a bunch of shysters. Had they been like every other shipping company I've dealt with in the past, they'd have told me about the charges, and requested payment before delivery, not nearly three months afterwards. Of course, had they told me of the charges before delivery they know full well that I'd have asked them to forget it and just bin the item, putting it down to experience, or, perhaps, taking it up with the seller (who was, then, still on the auction site).
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Old 12th Dec 2014, 08:04
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If it was the auction site I think it was and IF you used PayPal to purchase have you considered setting up a dispute with them? They are usually firmly on the purchasers side.
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Old 12th Dec 2014, 08:18
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Unfortunately by paying the 5 you would seem to be accepting that you have an obligation to cover their costs, and you are only disputing the amount.

In retrospect it would have been better to deny any contract with them and simply pay the VAT.
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Old 12th Dec 2014, 08:42
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DHL is worse!

DHL adds insult to injury by adding a CHF3 fee for "advancing" you the monies they pay on your behalf. Current interest rates being around 0.25~1.5% this seems completely unrelated to any costs they may incur.

Yes, I ordered it from abroad. Yes I understand that I am liable for paying the TVA and any fees imposed by customs (you get charged the inspection fee regardless if there are any duty/TVA payable). Yes I understand that I am liable for paying DHL a handling fee. But adding a 3 franc extra charge is criminal.

If things get shipped by the post I usually end up paying CHF8-10 in addition to the import duty/TVA. Ship it via DHL and your charges are more like CHF30.

You, the receiver, have no choice. Despite not entering into a contract with the delivery firm you are responsible. Despite the fact that you do not want to business with that particular delivery firm.

I've started asking shippers to use the post but very few are flexible on international shipments. (Amazon? Are you listening??)
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Old 12th Dec 2014, 09:34
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Clause 20.5 quotes above says you are liable to pay on delivery, and if you haven't paid within 7 days TNT should collect from the sender. You shouldn't have paid anything, or, if you wanted to be legal, paid the VAT on your own account direct to the Guvmint.
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Old 12th Dec 2014, 11:46
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mixture
And this is why non-lawyers such as 419 shouldn't be quoting excerpts from a contract.
and then you go on to quote an excerpt from a contract!.
However, you seem to have missed the fact that the part of the contract you quoted has already been broken by TNT themselves.

20.5. As a matter of course all import duties, value added taxes on goods and all other charges levied on the shipment in the destination country shall be payable to us by the receiver upon delivery of the shipment and if the receiver refuses to pay you agree to pay us these amounts in full within 7 days of us notifying you that the receiver has not paid.
The charges were not asked for "upon delivery of the shipment", they were asked for two months later.
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Old 12th Dec 2014, 17:49
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Unfortunately, by the time TNT sent me the invoice, the seller had already been reported to the auction site for misrepresentation, their account had been cancelled and the time limit for recovery action had run out, as the order was actually placed in July.

TNT didn't inform me of the charges until a couple of months after delivery, had they informed me before delivery or at the time of delivery I'd just have refused the shipment, as paying almost double the price because of the 18 handling fee from TNT just wasn't worth it.

The actual charging of a fee to handle VAT, duty etc isn't really the issue here, it's the magnitude of that fee in relation to the amount of VAT paid. They paid 5.86 VAT on my behalf (without asking me first) and are trying to charge me 18 as a fee for doing this, which is outrageous.

In the past I've bought stuff from outside the EU and had to pay VAT and duty, and on those occasions the shipping company, or Royal Mail, have asked me for payment before delivery. On these occasions I can't recall having had to pay such a high handling charge; I have a feeling that something around 5 to 8 has been charged by other shipping companies, which seems reasonable.

In this instance, TNT are trying to charge several times their own fee for shipping the goods from the far east as a handling fee for paying just 5.86 VAT, which is plainly barking mad.
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Old 12th Dec 2014, 18:43
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Just a reminder that large companies can and do make bulk applications to the courts against customers who have not paid their bills. This will result in an entry on your credit record with credit reference agencies. You may well be completely unaware that any such action has been taken until you apply for a loan or mortgage and get turned down with no explaination.

Fair? No.
Legal? Yes.

As far as the handling companies are concerned, they charge a fixed fee per item plus VAT and import duty (if applicable) and all they are worried about is if their books balance once delivery has been made. Whether you personally consider the charges to be reasonable or not is immaterial from a legal point of view.

If you get blacklisted by a credit reference agency, even as a result of a disputed payment, it will cost you a lot more time and money to sort matters out and there are no guarantees that a finding will be made in your favour. The devil is in the details and small print of the contract and in this particular instance, you are legally liable to pay the full amount requested.

Once payment has been made in full, you could then apply for a refund on the grounds that the charges were unreasonable for the service given, but rather like the Post Office charging the same for a letter delivered next door or to the Outer Hebrides, the delivery/handling companies will argue that their charges are calculated as an average and applied using the same principle.

It is of some importance that you can demonstrate that you can and could at the time of the invoice demand afford to pay the full amount and that this is not just some ploy or delaying tactic because you didn't have the money to spare at the time.

Unfortunately once the company has your money and their books are straight, the matter is closed as far as they are concerned, so any application for a refund will likely fall on deaf ears.

So you can pay up or refuse payment and risk being black listed by the credit reference agencies. Having an entry for non payment of a debt in your credit reference file is not trivial and can take years to have corrected.
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Old 12th Dec 2014, 21:06
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What puzzles me is how a company can take legal action for what amounts to breach of contract, against someone with whom they have no contract.

I find it hard to understand how any court could find in their favour when there was no contract at all between the claimant and the defendant, either explicit or implied.

I'm no legal expert, by any stretch, but I do remember lessons learned from a commercial contract law course my employer put me through a few years ago. The key thing, as I recall, was that in order for a contract to be lawful there had to be three things in place; an offer, and acceptance of that offer and the exchange of a consideration.

In this case there was no offer to me from TNT to establish the basis of the contract, there was no acceptance by me of the terms of their offer, and the exchange of consideration was limited to them delivering the goods and me making a goodwill payment to them.

As two of the key elements needed to make a contract lawful under English law were absent, I don't see how they can get any court to agree that I actually owe them any money.
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Old 12th Dec 2014, 23:16
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All the adverts I have seen on eBay specify a delivery method. I suspect that TNT was listed somewhere in the listing as the handling/delivery method. When you click on the box to agree to purchase the goods, you agree to all the other conditions attached, even if you perhaps haven't specifically looked up the page covering delivery methods. It is implicit in the sale conditions otherwise how could the goods be despatched to you?

It is easy to skim over the delivery details, especially if it just states TNT (or whoever). It wasn't even a lie to state free postage, as the delivery was arranged and paid for by TNT, even if it was delivered with the regular post.

It is sharp practice not to quote a delivery/handling charge up front, but these can be so variable between different countries it can be impossible to arrive at an accurate figure for all possible buyers in advance of a sale.

You have every right to feel aggrieved and misled, but legally you have entered into an implied contract and are responsible for paying the invoice. Caveat emptor is the golden rule when purchasing any goods sight unseen from an unknown source on the internet.

The terms and conditions of the sale and delivery methods are comprehensively covered by the legal details contained on the auction website(s) and in agreeing to purchase the goods without specifying an alternate delivery method or questioning any charges in advance, you have no recourse to the law.
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Old 13th Dec 2014, 06:11
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Please don't be stupid 419 !

You should have read the words "because for example it misses stuff like this ....". i.e. I made it blatantly clear that I was merely quoting another paragraph as an example of what you had missed, rather than quoting that paragraph as the be all and end all.

Thus my EXAMPLE quotation did not go against my original statement of people having to consider the complete contract as well as any underlying legislative framework !

The charges were not asked for "upon delivery of the shipment", they were asked for two months later.
Here we go again, you cherry picking....

The receiver BECOMES LIABLE "upon delivery" .... if/when TNT decide to invoice is immaterial ! This is implied elsewhere in the TNT conditions ..... FOR EXAMPLE, BUT NOT LIMITED TO ......

We may in some countries make advance payments of import duty, taxes, penalties or have to post bond on behalf of the importer and where this additional service is provided a local administration fee will be charged to the receiver
i.e. in order to expedite the shipment through customs and avoid unnecessary delays, TNT will pay the charges and recover these from the importer at a later date.

As far as I'm concerned that makes PERFECT commercial sense for a large shipping company like TNT .... it would be crazy and an administrative nightmare for them to dump everything in a customs hold and deal with every single person paying their customs fees themselves .... much more sensible and efficient to bulk clear the freight straight off the back of the aircraft and pass it on for local delivery !

Last edited by mixture; 13th Dec 2014 at 06:26.
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Old 13th Dec 2014, 06:13
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What puzzles me is how a company can take legal action for what amounts to breach of contract, against someone with whom they have no contract.
Maybe because its not a contract scenario, but an import scenario !!!!!

You don't need a stinkin' contract to be liable to taxes and duties on import, you are the importer, the ball is firmly in your court, end of story. TNT have merely acted as your customs clearance agent by virtue of being the designated delivery company.

Last edited by mixture; 13th Dec 2014 at 06:31.
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