Alice lists an item on an eBay auction and in the listing, declares “no returns”.
Yet certain consumer rights provisions including distance selling regulations mandate the indulgence of buyers remorse periods etc.
Is it possible to contract out of these as many online auctions try to do?
No - if Alice is selling in the course of business.
If Alice is not acting in the course of business, if she's a private seller, then Bob the buyer doesn't have the same statutory rights.
The Know Your Rights page in eBay.co.uk's Safety Centre outlines consumer rights law and the duties of businesses to consumers in the context of eBay.
These laws apply to businesses selling to members of the public, they do not apply to members of the public selling to members of the public.
The Restrictive statements page provides more detail about the consumer's rights with regard to 'restrictive statements' such as "no refunds". That kind of statement is automatically void and it may constitute a criminal offence were Alice the business to give the consumer the impression they have less or no consumer rights to pursue a legitimate claim against her. Alice the business and buyer Bob cannot contract out of consumer rights law.
If Alice is selling in the course of business Alice must provide information about the business and the consumer's rights, including the cooling off or cancellation period. Alice commits an offence if she does not provide this information or if she misrepresents herself as a private seller.
A fundamental concept in French civil law is ordre public, codified in article 6 of the civil code:
On ne peut déroger, par des conventions particulières, aux lois qui intéressent l'ordre public et les bonnes moeurs.
One cannot avoid laws that concern public order and good morals by contracts.
In practice, legislation will explicitly designate this or that part of a statute as public order. For instance, much of labour law is ordre public, otherwise it would not make much sense ("the law says the minimum wage is $X, but we can make a contract for less than that").
This law review article translates the term as "preremptory or jus cogens", but it is not clear to me whether "preremptory" is an actual word or a typo (for "preemptory" or "peremptory"?), and jus cogens seems to mostly be an international law concept (i.e. principles so basic that they ought to apply in all jurisdictions, and potentially can be invoked in a given country's court even in the absence of a statutory or jurisprudential basis within that country’s law).
Consumer rights mostly apply to sales between a private buyer and a business seller. Those are (mostly) derived from Book II, Title II, Chapter 1 of the code of consumption. All that chapter is designated as ordre public, so Alice cannot contract it away.
In particular, according to Article L221-18, and assuming none of the (numerous) exceptions applies:
Le consommateur dispose d'un délai de quatorze jours pour exercer son droit de rétractation d'un contrat conclu à distance, à la suite d'un démarchage téléphonique ou hors établissement, sans avoir à motiver sa décision ni à supporter d'autres coûts que ceux prévus aux articles L. 221-23 à L. 221-25. (...)
When a sale was conducted purely at a distance, the buyer has fourteen days to cancel the sale, without having to justify their decision, and they can only be held to costs listed in articles L 221-23 to L 221-25 [i.e.: postage costs to return a physical object, and proportional partial payment for services rendered in part]
Alice is not held by that chapter of the code of consumption, and she does not have to allow unconditional, unjustified returns. However, she is still held by articles 1641 to 1649 of the civil code:
Le vendeur est tenu de la garantie à raison des défauts cachés de la chose vendue qui la rendent impropre à l'usage auquel on la destine, ou qui diminuent tellement cet usage que l'acheteur ne l'aurait pas acquise, ou n'en aurait donné qu'un moindre prix, s'il les avait connus.
Le vendeur n'est pas tenu des vices apparents et dont l'acheteur a pu se convaincre lui-même.
(...)
Il est tenu des vices cachés, quand même il ne les aurait pas connus, à moins que, dans ce cas, il n'ait stipulé qu'il ne sera obligé à aucune garantie.
Dans le cas des articles 1641 et 1643, l'acheteur a le choix de rendre la chose et de se faire restituer le prix, ou de garder la chose et de se faire rendre une partie du prix.
The seller is liable for hidden defects of the sold object that make it improper for its intended purpose, or impair it so much that the buyer would not have acquired it at full cost if they had known them beforehand.
The seller is not liable for visible defects that the buyer could have ascertained themselves.
(...)
[The seller] is liable for hidden defects even if they themselves ignored them, unless contracted otherwise.
In the case of [the articles above], the seller has the choice between returning the object and being fully refunded, or keeping the object and being partly refunded.
Alice must therefore allow buyers to return objects if they have defects that cannot be ascertained from the online listing.
That being said, if things go to court, the buyer needs to prove that the object was faulty, which can be tough. For instance, if Alice sells a porcelain mug, and it is broken when Bob opens the package, Bob must prove that it did not break between the delivery point (Bob’s postbox?) and the opening of the package.
Refunds are a statutory right under the Australian Consumer Law for any major defect. It applies to any supply (broadly defined to include many B2B transactions) for consideration and, in some circumstances, donations and gifts.
A blanket “no refunds” clause is void and also a breach of the deceptive and misleading conduct provisions of the ACL. The case law on point for this is ACC v Valve Software - the operators of the Steam gaming platform. Their terms had a “no refund” clause, the Australian Competition and Consumer Commission sued, the Full Federal Court upheld the fine of AUD 3 million.
