Online Shopping Part 2 - My Contract is with You...
Updated: Jun 27, 2020
Following on from the first post from this series 'When Things get Nasty (Gal)', here's part 2 of 4 in establishing Your Rights when you shop online.
Before we get stuck in, I briefly wanted to say that there are situations in which you want the answer in Question 1 to be 'NO' - for example, where a company is telling you that you need to pay up for a product or service that you never received. If you can safely say there was an absence of either an Offer, Acceptance or Something in Return (Consideration), even if just ONE of these things is missing, then there is no contract, no agreement, and neither you nor the other person or company is bound or obliged to do anything. More on that soon.
Lawyer asks "What are the terms?"
Layman asks "What is our agreement?"
The three ingredients you identified in Question 1 will form part of the answer to Question 2, too, in this way:
1) WHAT WAS THE OFFER?
Quite simply, what was said, written, or presented by the 'giver' (remember, this could be you in auction/no-set-price scenario, go back to Question 1 if you're not sure)?
How did they describe the product or service - its attributes, quality, cost, look and feel?
What guarantees were given?
Did the giver mention any specific exclusions? For example, if there was an image, did they say each product is unique and might not be exactly like the one in the picture?
Did they state that any terms and/or conditions apply, or refer to any? These could be incorporated in the offer OR by reference e.g. 'our standard Terms & Conditions which can be found on our website apply'.
2) WHAT WAS ACCEPTED?
This time, what was said, written or presented by the 'taker'? Most of the time the answer to this will just be 'I'll take it', such as when you make an order on a retailer website like I did. You don't get a chance to say anything else, so your answer is simply, 'I accept your offer'.
3) WHAT WAS THE SOMETHING IN RETURN?
Again, if you order from a website that only let's you say 'I'll take it', the consideration will be the price you paid for the product.
Unlike Question 1, at this stage we also have to add a fourth ingredient:
4) DOES ANYTHING ELSE APPLY?
Do you have any previous agreement with this company/person which might be relevant? For example, if you signed up for an account with them, you might have previously agreed to some T&Cs that apply to future orders. Or, as was my case when shopping with Nasty Gal, you may have pre-paid for something (like premium delivery for a year) which should be made available to use during this new purchase.
Do any general law provisions apply? This is where you really get to start lawyering. The very purpose of the laws mentioned below is to protect customers and consumers who sign up for purchases with companies. NOTE - for each law and provision there will be requirements for it to apply, limitations, and exceptions. We'll come back to that but these key provisions often apply to online shopping customers:
Consumer Contracts Act - this is the one I have been referring Nasty Gal to, since it stipulates that the Seller must provide the Buyer with all the information about the purchase they are making. When I carried out the purchasing transaction, I was not referred to any terms of delivery other than those that had been explicitly mentioned during the transaction. To make things worst, the delivery terms Nasty Gal said were located on that page were actually not on that page at all. When I questioned this I directed me to a page belonging to another company in their Group, Boohoo.com, and tried to say that those delivery terms applied to my purchase. But I had no contract with Boohoo, and that company and those terms were never referred to previously, nor are they referred to in Nasty Gal's T&Cs.
Consumer Rights Act - this provides a few protections. One is that as a customer you are entitled to a 14-day 'cooling off' period, namely a a right to cancel the purchase within 14 days of receiving a product if you want to, and get a refund, including for basic delivery. You also have the Right to be Informed and sellers must not provide misleading information about a product. If it is of unsatisfactory quality, not fit for its purpose or is not as described, you have a right to reject it within 30 days. Exceptions to this apply to digital or perishable items, tailor-made or personalised items, and goods with a seal for health protection and hygiene reasons that's been broken. With respect to delivery, failure to deliver within a reasonable time and after the agreed deadline is a breach of this Act. The Act gives a default delivery period of 30 days unless longer has been agreed. If you haven’t received the parcel within this time frame and time is of the essence you have the right to cancel the purchase and obtain a refund. Likewise if the delivery time is not essential but another reasonable timeframe can’t be agreed.
Carrying out the above exercise, you now know what rules govern the agreement that you have with the seller, and where you need to look to get the answers to Question 3 and 4 below, which will let you Know Your Rights in full when shopping online. You are on your way, so stay tuned for the next posts in this series which will cover the final 2 questions:
Question 3 Lawyer asks "Has there been a breach?" Layman asks "Has our agreement been broken?" Question 4 Lawyer asks "What remedies exist?" Layman asks "So what can I do?"
You can also start back at Question 1 if you need to.
Best wishes and safe shopping! Sophie Your KYR Team