Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘consumer rights

Consumer rights and force majeure

leave a comment »

A major consumer problem in Germany (and likely large parts of the rest of the world) are “force majeure”-style* restrictions on performance and liability**.

*Some of these are related to actual “force majeure”, others merely follow a similar pattern of “what happened does not match my best case scenario; let the customer suck it up, then it is not my problem anymore”.

**It is often the case that the performance of a duty is legitimately hindered by an external event, but that does not automatically imply that the hindered party is legitimately free from liability, the duty to compensate others, whatnot.

In some cases, these restrictions can be seen as justifiable or necessary, e.g. in that an insurance company would not cover city-destroying bomb damage as seen in WWII: Chances are that an attempt to do so would simultaneously bankrupt the company and leave the claimants with only a fraction of the compensation they need. These will mostly be actual “force majeure” cases, but “force majeure” does not automatically make it such a case.

In many others, these restrictions are arbitrary, unfair, unexpected*, or otherwise customer hostile. Some cases can even be seen as borderline fraudulent, because the customer is mislead about what he can expect for his buck or what the true cost of a certain service is.

*In the sense that most customers and independent observers would have had a different expectation.

To look at a few examples:

  1. The events that can lead to a certain restriction are often under the close control of the business and entirely out of the control of the consumer.

    For instance, a few years ago I hired a storage unit—and was met with clauses that basically restricted the liability for any damage to my goods to nothing. This included water damage and theft.

    Now, who decides where water pipes are drawn and how they are maintained? Who what locks are used? What alarm system? Whether a guard will be present? To entirely avoid the risk of water damage and theft is impossible, but they can be reduced quite considerably—or made comparatively large. Notably, not making the business liable ensures that it has little incentive to actually invest in the security of the facilities, thereby increasing the risk that e.g. a break-in will occur…

    As an aside, the latter point includes a disturbance in the functioning of market forces: When the business is liable, it will (to the best of its ability) try to find a point where the overall expected cost from preventative measures, insurance, break-ins, … is minimized, leaving the overall economy a little bit better off. This especially with bulk insurance potentially being cheaper and definitely less effort than individual insurance (as discussed in the next item). When it is not, there is no-one in a position to balance these factors, the expected cost rises, and the overall economy is worse off.

  2. Scenarios like these hide and/or increase the true cost from/for the customer: He can either hope for the best, with an unknown risk/expected cost, or he can insure himself independently, which increases the cost not only through the amount to pay, but also through the extra effort to investigate alternatives* and going through the paperwork—assuming that there even is a reasonable insurance available… Far better would be for the business to be liable, with the business optionally taking out a corresponding insurance at a bulk rate, with a corresponding non-hidden increase of the rental fee, allowing customers to see what they actually pay.**

    *Particularly perfidious businesses are likely prepared to swoop in with an insurance-on-top-of-the-rent, where many customers will be willing to pay an over-the-market fee for the comfort of not having to do research and whatnot—for something that should have been included in the rental fee to begin with…

    **On the detail level, there are additional issues to resolve, e.g. where to cap the possible compensation and to what degree the customers must disclose the contents of their units in order to be covered. This, however, is unimportant for a big-picture discussion. (The same can apply to other points under discussion.)

  3. The events are often given a pseudo-“force majeure” aura or painted as unexpected when they are not (overlapping with the first item).

    For instance, in Germany it is common that just two centimeters of snow throws the railway system into chaos, while the railway companies virtually every single year are “surprised” by snow at some point in December. Sorry, at these latitudes, no-one has the right to act surprised when it snows during the winter, and corresponding measures to survive two centimeters of snow must be taken. (That this is not an impossibility is proved by Sweden, where problems of this size occur much later.) Sadly, the attitude seems to be that “because it snows on so few days of the year, we ignore the possibility of snow and let the passengers take the hit when it does snow—after all, we do not have to compensate them*”; something also seen in e.g. the lagging maintenance of the infrastructure, which causes many unnecessary problems and delays. (Here again, we also have a hidden cost issue: Would you rather pay 25 Euro and get where you want on time, or 20 Euro and be thirty minutes late on every second trip?)

    *A 60 (!) minute delay entitles the customer to a 25 (!) % refund of the ticket price. 120 (!) minutes gives 50 (!) %. For less than 60 minutes nothing is given; for more than 120 there is no further increase. Actually getting the refund is such a hassle that it often not worth the effort. Few provisions are made for other types of compensation and none for e.g. “I missed my flight” or “I missed two hours of work” scenarios. (Cf. official information from Deutsche Bahn.)

    For instance, strikes and the like regularly lead to service interruptions with no compensation—even when occurring so fast that customers have no reasonable chance to adapt their plans*. However: Firstly, strikes are a part of doing business and something that must be considered accordingly. Secondly, whether it comes to a strike is largely within the control of the business**, but not the customer, and the business*** should carry the responsibility vs. the customer.

    *For instance, a few years back I was to fly from (for the first time) Düsseldorf Airport to Munich for an interview. To ensure that nothing went wrong, I went to the airport several days in advance, had a look around, found out where I needed to go, etc. On the day of the flight, I returned—and found that there were hundreds and hundreds of people queuing to reach the security checks, and eventually realized that I had no chance of catching my flight, despite being there several hours in advance of boarding. The reason: A strike by security personnel that had been announced just a day earlier… A very healthy regulation would require strikes to be announced sufficiently far in advance that customers and employers can react to reduce the damage to the customers as an innocent third party. (What time frame is involved will depend on the circumstances, but with air travel as much as two weeks might be reasonable; for the local library two days might be enough.)

    **No, an employer cannot unilaterally tell his staff not to strike; however, he can influence how negotiations go, he can judge the damage done by strikes vs. the damage done by agreeing to demands and act accordingly, he could possibly negotiate a way of striking that is less damaging to the customers, etc. As long as the customers carry the main consequences, however, he has lower incentives to avoid the strike.

    ***However, with the option to in turn make demands towards the strikers in at least some cases, notably when the strike was “wild”.

    As an aside, a major problem with strikes in Germany, from a union perspective, is that they often do more to turn the customers against the union than to convince the employers. Forcing businesses to compensate their customers for the effects of strikes could change this. (As could a more rational strike behavior, but that is another topic entirely.)

  4. Flood damage is usually excluded in a blanket manner from regular insurance policies, because the insurance companies are afraid of being stuck with thousands of large simultaneous claims in a river-rich country.

    However, this goes contrary to a layman’s expectation and likely leads to many not having the coverage they expect. Further, separate coverage is not always on offer, potentially forcing the customer to go to a second insurer, with the extra research and whatnot. I would also strongly suspect that the cost of separate coverage is higher than a built-in coverage for the costumer, because the overall fees and risks cannot neutralize each other and because a greater markup is added.

    A better solution would be to include flood damage, raise the fees for people in high-risk* areas (possibly with the option of a voluntary opt-out), and increase the re-insured amount. The raised fees ensure that the insurance company does not lose money; the re-insurance that it is not crippled by a major flooding.

    *Consistent with the idea that whoever controls the risk pays the additional cost; however, note that the control here is lower than for the storage rental above, e.g. because the likelihood and consequences of a flooding river is to some part controlled by (other) humans, not just nature, and because we cannot always choose where we live.

Notably, German businesses often have the attitude that they have no liability for anything, that it is always the customer’s (or someone elses) problem, or similar—even in the absence of a corresponding contractual clause, real or pseudo-“force majeure”, whatnot. (In addition to my own experiences and what I have heard from others, I have read a great number of articles dealing with consumer issues in a German context. The situation is horrifying.) Examples include retailers systematically sending the customers directly to the manufacturer when a product is defect*, (often for-charge) hot-lines that are staffed with incompetents, various hoops that have to be leaped through in order to get compensation**, pretending to be unaware of legal rights or deliberately telling customers something that does not match the legal situation***, …

*According to German law, the retailer, not the manufacturer, is obliged to correct problems. The retailer might later have the right to turn to the manufacturer for help or own compensation, but that is between him and the manufacturer—not the customer and the manufacturer.

**A scenario that I have encountered several times, myself, is that I write an email, detail what is wrong, and receive a form back that neither allows nor requires any information not already provided—together with the refusal to treat my complaint unless I spend five or ten minutes (redundantly!) filling out the form, another twenty running by the post office, whatnot. Other common problems include repeated requests for information already provided, requests for mandatory irrelevant information, refusal to handle anything by email, … It is quite common that the effort to receive compensation (see a problem solved, replace a defect product, whatnot) is so large that it exceeds the intended benefit—honi soit qui mal y pense…

***For instance, as I made my last order with Amazon Germany, possibly some fifteen years ago, my request to cancel a purchase was originally denied with the claim that Amazon’s help pages (!) ruled this out—never mind that German law gave a fourteen day return right, no questions asked, for any online purchase…

As an aside, expanding on a few items above, I am generally strongly in favour of whoever controls the risks/costs and who gains the benefit from a certain behavior or whatnot also carrying the costs/risks/consequences/… Above, we have e.g. the principle that whoever controls the risk of a break-in has the responsibility to reimburse others for not preventing a break-in. Other examples include e.g. that when someone performs an action to his own advantage and (negative) externalities occur, he should compensate others for these externalities*.

*Consider e.g. a factory that earns well while polluting (compensating efforts, some type of environmental tax, or similar, is called for) or a land-lord who performs extremely loud renovations over months in order to later increase rents (tenants should be compensated for reduced quality of life).

Advertisements

Written by michaeleriksson

April 19, 2018 at 10:54 pm

Follow-up: Some problems for German consumers illustrated by Beyerdynamic and DHL

leave a comment »

Unfortunately, Beyerdynamic compounds its customer hostile behaviour through spam:

Today, I received a rudely* formulated spam message trying to force-feed me additional products.

*Presuming to address me by first name and using the informal “du”, which by German standards is an absolute no-no and a gross breach of protocoll in business (and most private) settings, before a mutual agreement on this point has been reached. It is far worse than e.g. calling a first-time customer “dude” in the U.S.—more on the level of calling the President “dude”.

This would have been an inexcusable abuse of my trust and data, even had the relationship been a good one. This alone would have been enough for me to terminate any further relationships with Beyerdynamic, even without the previous events.

In light of those previous events, its beyond anything and everything that is even remotely conscionable and acceptable.

Unfortunately, this is another recurring problem: Many businesses imagine that as soon as they have sold any product, received any inquiry, or (often) even have just gotten their hands on an email address, they have the right to do anything they want with it.

Written by michaeleriksson

July 2, 2017 at 12:21 pm

Some problems for German consumers illustrated by Beyerdynamic and DHL

leave a comment »

One of the greatest problems in Germany (I suspect, in many other countries too) is the refusal of many businesses to honor their contractual obligations in a reasonable manner in a B2C setting. Depressingly often, a contract, an order, whatnot, is seen as a one-sided obligation for the customer to pay, while performance of the service, delivery of the ordered goods, …, are mere nice-to-haves. Quite often, the customer has to spend so much time seeking rectification of even obvious, indisputable errors, that the working costs* exceed the monetary costs for the product at hand or the value-added that the product/service was supposed to give. Deliveries are a particular problem, with third-party businesses performing the actual delivery, without every having a contractual connection to the actual customer. This results not only in extremely poor performance, but also in restrictions in customer recourse, and that customers have to live with whatever terms were agreed between the delivery service and original business.

*In the case below, e.g., the total time investment in ordering, paying, researching the fate of the package, writing complaints, …, is almost certainly more than an hour (this post not counted). This alone is more than half of the price of the product, compared to my working and billing the same amount of time. The form mentioned below could have pushed it up sufficiently to outweigh the entire price. To this must be added the repeated aggravation of my mood. I would have been better off had I never bought this particular product at all.

Below I will discuss a particularly absurd case that has taken several weeks to come to a (highly unsatisfactory, semi-) resolution.

Before I do so, I would like to make the following very strong recommendations (in Germany, the international mileage may vary):

  1. Stay away from Beyerdynamic.
  2. If at all possible, stay away from DHL (but beware that this is rarely an option left to the costumer).
  3. Unless you have a specific agreement with a well-known neighbor, make it very, very clear that delivery to neighbors is ruled out. If you do have such an agreement, make this equally clear. Something like “!!!Nur Eigenhändig!!!” prefixed to the name or address might work.
  4. Conversely, never accept a package for someone else when you do not have an agreement, let alone do not know the recipient personally.
  5. Never, ever pay before delivery—not even when you have reason to believe that the business is not one of the many outright fraudulent web shops.
  6. Consider whether it is not less hassle to just buy things in stores to begin with, even at the risk of higher prices and a smaller selection of products.

Details:

My secondary apartment (for reasons of work, I keep several households) has the advantage that the property manager has offices in the building it self, and when I have received packages when not at home (i.e. on every single occasion), it has been left with the property manager. Coming home from work, I can simply collect it, without having to search for absent neighbors, going to the post office, or wherever my package ended up.

Due to my living situation, I wanted to buy a second pair of head-phones* from Beyerdynamic, and being wary of the problems with Internet orders I (just like the last time) ordered directly from the manufacturer. Considering that this was known entity, I reluctantly agreed to pay in advance**.

*I will not mention the model, because I do not want to make even an indirect recommendation of any Beyerdynamic product.

**While I do not recall the exact set of payment options offered, a typical scenario is that advance payment is the only realistic option. Payment per invoice is very rare and/or reserved for well-known customers. The old German “Lastschriftverfahren” has virtually disappeared online. Credit cards are hardly usable, because most shops demand use of 3D-Secure (or an equivalent technology) and this, in my experience so far, results in two minutes of work and then an obscure error message. Paypal is notorious for its arbitrariness and is arguably a riskier payment method than advance payment…

I suffixed (! cf. above) my address with a statement that delivery to the property manager (NOT e.g. “neighbor of your choice”) was acceptable, even though considering this unnecessary: Deliveries had so far always been left there anyway.

The DHL delivery presumably took place nine days after my order (specifically: 2017-06-09).

To my dismay, it was NOT delivered to the property manager, but to some “Höbel” in the 18th Stock. I live in the 24th Stock, I have no idea whatsoever who this “Höbel” is, and with not even a first name added, this was not a satisfactory identification. To boot, it should have been self-evident that the delivery to a random neighbor instead of the alternative explicitly specified in the address was not acceptable.

It comes worse: According to the name signs, THERE IS NO HÖBEL IN THE 18TH STOCK! (Nor could I find a “Höbel” at all in the door-bell listing at the entry, but with the great number of entries, one might have existed.)

On the 17th, having given this “Höbel” plenty of time to present himself or at least leave a note (he did not…), I sent a complaint to Beyerdynamic, detailing the situation and demanding an immediate remedy, seeing that the situation had arisen through errors by its contract partner.

Despite my full explanation of the situation, the reply was a request that I should fill out and sign a form. There are a number of problems with this:

  1. It causes even more effort for the costumer without adding any value to the process. There was no valid extra information, and even a signature would be worthless, seeing that on the off-chance that someone was lying, he would not hesitate to sign that lie: After all, no-one could realistically prove that he was lying.

    In my case, this effort is quite severe: My printer is in my other apartment and going there just for a one-off print would cost me hours; alternatively, cause a delay until I was in Wuppertal for other reasons. Using the printers at work for such purposes is shady even for employees, for me, as an external contractor, the more so. There is no* copy shop in the immediate vicinity, and finding and using one would cost me a minimum of half-an-hour, quite possibly more—too which the actual printing costs must be added.

    *Actually, there is one, but it is a complete joke. For instance, they regularly fail in printing even PDF correctly, e.g. through mishandling margins or the German umlauts—unacceptable in a business communication. The print quality (in the ink on paper sense) is abysmal and the one staff member I have interacted with on my few visits lacks even basic computer skills and takes minutes to print even a one-page letter.

    Most likely, this form was something that Beyerdynamic needed vs. DHL—and that is simply not the costumer’s problem. Basically, “DHL will not voluntarily do their duty towards us, so we will just refuse to do our duty towards the customer” / “…put the whole burden on the customer instead”, which is of course a grossly unethical and customer hostile attitude.

  2. I have proof of payment. In this situation it is the duty of Beyerdynamic to prove delivery. Not only had delivery (if at all…) not taken place in a manner that could be considered reasonable and a fulfillment of contractual obligation, but there was a more than fair chance that the package was stolen (or otherwise lost/damaged)—either by this “Höbel” (possibly giving a false name) or by the deliverer, faking delivery to this unknown entity. I note that Beyerdynamic did not even bother to give signed confirmation of the alleged delivery to “Höbel”…* Failing a complete disappearance, there was always the possibility that the package would only turn up many weeks later**.

    *While that has so far been the normal next step in my experience, the value is admittedly limited. I recall some ten years ago, when DHL swore that someone IN MY APARTMENT had accepted delivery and “proved” this through an unreadable signature. A week or so later, I received a note from a near-by mattress shop, “reminding” me to collect said package. I very much doubt that the shop keeper had broken into my apartment, signed for the package, and then left with it…

    **I once had a neighbor accept a package in my name, move (!!!) without notifying me, and leave the package in her old apartment, resulting in me only receiving the package more than a month later, when the new tenant moved in…

    In as far as the package was not stolen (etc.), e.g. because “Höbel” had accepted it and gone on vacation or because DHL had made a mistake with the name or stock number, it would equally be the duty of Beyerdynamic to rectify, say by calling DHL and causing an investigation into whoever had actually received it.

  3. Since it is perfectly clear that DHL had not, even by its own claims, made a proper delivery, the question of a form is absurd: The delivery (allegedly) went to an unknown third party, who was not an immediate neighbor, against any reasonable interpretation of my instructions, and with information provided to me that was too faulty and/or incomplete to identify this neighbor…
  4. There is a fair chance (layman’s perspective) that requesting a reclamation on paper and/or with signature would be disallowed by the courts when the original contract was entered without such actions. There have been cases where requests for written termination have been disallowed for such reasons. Even if this did not generalize legally, the same type of reasoning would definitely leave the request unethical: The burden of rectification (termination, whatnot) must not be disproportionally higher than the burden of initiation.

    Of course, there are strong reasons to believe that at least some businesses deliberately puts obstacles in the way of the customers, so that they do not terminate contracts (on time or at all), do not file complaints, do not pursue their rights, …, for the simple reason that the hassle to achieve something is larger than the expected gain or that they just do not have the time.

I naturally refused and insisted on delivery without the need for additional efforts on my part, threatening to rescind the purchase. This just led to a renewed request for the above-mentioned form, spouting nonsense about how DHL would otherwise assume that delivery had taken place*. Firstly, again, what happens between DHL and Beyerdynamic is not my problem: Beyerdynamic chose a partner to do a severely sub-par job and has to live with the consequences; I have no contractual obligations to DHL; and DHL’s position does not remove Beyerdynamic’s obligation to fulfill the contract resp. provide proof of contract fulfillment. Secondly, DHL has no legal ground to assume that delivery to me had taken place: Delivery was not to my hands, even by their own claims. Delivery did not take place according to my instructions, even by their own claims. Delivery did not take place (if at all…), to an entity identifiable through DHL’s own claims. All this even assuming that delivery to an (identifiable…) neighbor is considered delivery in the first place, which might be what the T & C’s of DHL says, but which is obviously idiotic, seeing that I do not have a contract with DHL and have never agreed to those T & C’s—DHL might not need to prove to Beyerdynamic that the next step of the delivery has taken place, but Beyerdynamic sure as hell has to prove it to me! Thirdly, considering the circumstances, the obvious procedure would have been for Beyerdynamic to re-ship and file a claim against DHL, and for DHL to file a claim against/recover the original package from “Höbel”.

*This remains the only motivation ever given, everything else was on the level of “we need”, with no references to anything that could have implied, even on a disputable basis, a duty on my behalf, e.g. a reference to some unethical clause in their own T & C’s.

After several iterations, I escalated the issue, knowing that many of these problems result from low-level employees who are deeply stupid, naive in matters of business/law/whatnot, and/or just follow protocol for some standard situations (being unable to handle anything not in their, literal or metaphorical, script). People higher in the hierarchy tend to be much more able and cooperative. At this juncture, I also rescinded the purchase and demanded my money back (and compensation, personnel consequences, and an email address to the appropriate contact at DHL, for a parallel complaint).

Alas, this was not the case with Beyerdynamic: The answering email expressed all sorts of regrets, but eventually just re-requested the same form… Other issues were ignored (including something as simple and cheap as the email address). The request for the form was at this juncture utterly inexcusable, because this amounted to an intention of keeping my money until I proved that Beyerdynamic had not fulfilled its duties, which is an absolute absurdity.

Shortly thereafter, two weeks (!) after the original “delivery”, the head-phones did turn up, left outside my door for anyone to steal…

I reported this to Beyerdynamic together with my intention to let the purchase stand (returning the package would have thrown good time after bad), and restated my other demands. All these items were just ignored in favour of a congratulatory message… This is the more absurd, as I had just showed a considerable amount of honesty and cooperation, despite Beyerdynamic’s previous behavior: I could easily just have kept the package, sent the form, and had both the head-phones and my money back. Obviously, honesty does not pay…

As an excursion on the unethical and customer hostile blanket approach of many delivery services, DHL above all, of leaving packages with neighbors:

Firstly, for this to be at all acceptable, the list of neighbors must be limited to those who actually know each other in person and the neighbor must be uniquely identifiable. Under no circumstances can it be acceptable to leave a package with someone 6 floors away in a 26 floor building, neighbors in other buildings, or random shops in other buildings. (All of which I have encountered.) Under no circumstances can a mere “Höbel” be acceptable, nor an incorrect claim of stock and/or name. Under no circumstances can it be acceptable to just put notifications on the house door instead of in the mail box of the recipient*.

*This was not the case above, but has been a common problem in the past. In at least one house, the DHL deliverer appeared to just give the packages to a near-by kiosk, without bothering to check whether the recipient was at home, and then slap on a notice for each package on the outside of the house door, where anyone could have removed them. The record might have been as much as five individual notifications at the same time. Of course, the kiosk never checked any IDs, possession of the notice was always enough…

Further, even when a neighbor is acceptable, it is very often not in the interest of the recipient (or the neighbor—just the delivery service):

  1. Collecting a package from a neighbor is often more work and/or requires more attempts than if the package was just left at a package shop/post office, for the simple reason that people spend different parts of the day at home, due to differences in working hours, evening and weekend activities, etc. In extreme cases (cf. above) a move or a prolonged holiday can cause an enormous delay.
  2. This causes a problem when a package is damaged and the neighbor makes a different judgment call than the actual recipient would have done.
  3. There can be instances where the recipient would prefer the neighbor to not know about the package (respectively, who sent the package or what can be speculated about its contents). Note that this is not restricted to contents of a nature normally sent “discretely”. Other reasons can include having an, in some setting/by some standard, embarrassing hobby; the package being intended as a gift for the same neighbor’s birthday; not wanting to rub a better economic standing in someone’s face; …
  4. Not all neighbors are friends, not all neighbors are honest, and there is no guarantee that a given neighbor will ever actually hand out the package.
  5. Delays in eventual delivery can threaten periods of reclamation and the like. Notably, Germany has blanket fourteen-day return right on all online orders. It can be safely assumed that many businesses will refuse to honor that counting from the delivery to the recipient proper, alternatively require proof that the delivery took place at a later date; instead they will just count from the delivery to the neighbor.

    (I suspect that this would not hold up in court, but going to court over the values typically involved would be next to impossible in Germany. Lawyers would not touch the case. The court would try to steer it away, e.g. through arbitration and a compromise. The effort, even with a lawyer, for the costumer would outweigh the value of the goods. And then there is the risk of losing… The lack of a “small claims court”, or a corresponding mechanism, is likely a strong contributor to the extreme attitudes of many businesses.)

In this situation, a delivery to the neighbors should, by law, only be allowed after an explicit opt-in by the recipient. Not an absent opt-out, not an opt-in by the sender, not some T & C claim by the delivery service, not whatever-saves-time-for-the-delivery-man: Only pure, explicit recipient opt-in.

Of course, much of this would be academic if delivery services had the common sense to deliver when most people were home rather than at work…

Written by michaeleriksson

July 1, 2017 at 5:18 pm