Legal Eye: Dear Santa:I want a refund

Dear Santa,

My wife Elizabeth, as normal, began her Christmas shopping on December 26 and by now has amassed a large collection of presents, already wrapped and ready to be placed under the Christmas tree. Most of the gifts are for our son, but I fear some of her great purchases have my name on them. Please don't get me wrong, I usually like her gifts, but from time to time she gets the size or color wrong.

Burnt orange may be the "in" color this season, but I would prefer not to look like an old pumpkin. A dark green or blue sweater would be just fine. What can I do? May I exchange the burnt-orange sweater for navy blue? Or am I doomed to dressing like a pumpkin, at least when my wife is around and I have to pretend to love my new sweater? Please help.

Store sales

The sale and return of merchandise is regulated by the Consumer Sales Act, which incorporates EU Directive 1999/44. The Consumer Sales Act regulates the sale of all consumer goods intended for personal use, including those goods sold over the internet. The sale of goods between businesses continues to be regulated by the Civil Code.

Under the Consumer Sales Act, a consumer may be entitled to return a gift if it does not "conform" to the contract of sale. Specifically, the contract of sale is not limited to what the written document of sale or the product label stipulates. The contract of sale takes into account "all" advertising claims, actual and implied.

By "all," I mean all claims and assertions made by the manufacturer, wholesaler and even other retailers. If the burnt-orange sweater does not satisfy all advertising claims, then yes, you may return the sweater to the store which sold it in order to repair it, exchange it, negotiate a price reduction or obtain a full refund, depending on the nature of the nonconformity.

A consumer has up to two years to return merchandise to the retailer. However, in order to take advantage of such right the consumer must act within two months of discovering the defect. The defect must be real and substantial in order to receive a refund, price reduction or replacement. Looking like an old pumpkin in your new burnt orange sweater, unfortunately, will not entitle you to a refund. You may still be able to exchange the burnt-orange sweater for one that is navy blue, but this will depend more on the store's internal return policy than the Consumer Sales Act.

Online sales

In addition to being governed by the Consumer Sales Act, the purchase of merchandise over the internet is afforded greater protections. If your wife purchased the burnt-orange sweater over the internet, you may return the sweater for any reason within 10 days of delivery. Even if the retailer has a seven-day return policy in its store, the same retailer must provide consumers with at least 10 days following delivery of the item ordered via the internet to cancel the transaction and 14 days to return the item and receive a full refund.

So, in case of a burntorange sweater ordered online, yes, you may return it for a full refund if you do not like the color, provided that you exercise such right within 10 days of delivery. So, if anyone sees me walking around in a burntorange sweater next year, please, no pumpkin jokes!

Paul B. Fogo is a senior attorney with Miller, Canfield, W. Babicki, A. Chelchowski & Partners. fogo@pl.millercanfield.com