Buying “at a distance”

by Lindsay Watts

ScotFlagDuring the recent Christmas period you will probably have entered into more contracts – mostly for the purchase of Christmas goodies and gifts – than at any other time of the year. 

It is always safest to buy something when you can see and touch it beforehand – in other words, in a shop. But buying through catalogues and the internet have happened and buying goods when you are not face to face with the seller is now commonplace. This is known as “distance selling”. Some people even go to the shops and photograph goods they want, and then see if they can get them cheaper online. Everyone makes a judgement – whether to pay more, but have less risk if anything goes wrong (buying from a shop) – or get the cheaper price because the risk of anything going wrong is low. It is a trade-off. Safety against cost. Everyone’s judgement is likely to be different.

Buying through catalogues or online is now big business, and there are several places to look for advice. The Office of Fair Trading and Citizen’s Advice websites are very good, and The Govan Law Centre is usually worth a look. In this article – which is not meant to be a guide – I simply want to bring three pieces of legislation to your attention which may help make your buying a little safer and more effective.

The first is regulation 10 of the Consumer Protection (Distance Selling) Regulations 2000 as amended. It provides that when goods are sold and the buyer and seller are not “face to face” (which means this covers catalogues and internet selling), then you have a right to cancel the contract for any reason within 7 days of receiving the goods. There are some exceptions, such as CD’s where the cellophane is taken off, and some clothes, but generally the rule applies. This regulation only applies to purchases from a business, so does not apply to purchases from individuals, such as Ebay. The right is to cancel the contract, and you could do it by email, but as you may have to prove it, it would be best followed up by a recorded delivery letter. Separately you have to send back the goods, but you don’t have to do that within the 7 days and if there are problems with this, it doesn’t affect your cancellation.  Many retailers try to get round these  provisions by getting you to agree to lesser terms, so beware the small print in their terms and conditions.

For goods over £100 and up to £30,000 section 75 of the Consumer Credit Act 1974 is a powerful tool. It provides that where you buy goods or services between those values by credit card, then if there is a breach of contract by the seller (for instance the goods are not as described or not of satisfactory quality) the credit card company is jointly and severally liable for any claim you make. So even if you don’t need to borrow the cost of, say, a winter holiday, it is worth using your credit card to obtain this extra protection. It is always best to pay the seller direct by credit card, because if you use intermediaries, such as Paypal or Amazon Marketplace, there is doubt as to whether section 75 applies, and you may have to use their own dispute resolution process, which may take some time, and produce a less satisfactory result.

The third piece of legislation that may be very useful is rule 3 of Schedule 8 to the Civil Jurisdiction and Judgements act 1982, as amended. This provides that where the contract is a “consumer contract” (which means that the goods are not bought for resale, but by you as the end user), then if you want to sue the seller for any breach of contract, you may sue them in the courts where they are “domiciled” or based, or if more convenient, in the court where you are domiciled. So a buyer in Shetland could use Lerwick Sheriff Court to sue a company based in England for a £30 DAB radio that doesn’t work properly, and that company would have to take the ferry and come to Shetland to defend the action. The consumer is in a strong position here to negotiate a beneficial settlement. Again many distance sellers will try to avoid this term by asking you in the terms and conditions to agree to use their local court instead, so have a quick scan through their terms to see. Look out for the word “jurisdiction” which highlights any attempt to do this.

All 3 pieces of legislation have been in existence for many years, and many online sellers try to avoid them. Some try to pretend they are individuals rather than businesses, so that these terms don’t apply to them. Others try to get you to get you to agree to give up your rights by ticking a box to agree to their terms and conditions, or get you to join a club which has it’s own rules, and bypasses these provisions. Look for them when you are spending larger sums of money, and avoid sellers who do this. If anything does go wrong and a seller tries to avoid their responsibilities, then a reference to the Unfair Contract Terms Act may make them more reasonable.

I sincerely hope you don’t have to make use of any of these provisions, and that your “distance buying” –whether through Equi-Ads or elsewhere – is a trouble free process.

Please note: Scottish law may differ from the rest of the UK

Author: Features Editor

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