Online Shopping Part 3 - Sneaky Business
Updated: May 8, 2020
Ok, so you know how to find out if you have an agreement, and you know where to look to find what exactly it is, now we need to ask:
Lawyer asks "Has there been a breach?"
Layman asks "Has our agreement been broken?"
This involves looking back at what we discussed in Parts 1 and 2, and simply considering:
Has the seller done what the agreement said they would; and
Has the seller done anything that the agreement said they would not do?
In my contract with Nasty Gal, the seller promised that in exchange for payment (which I had already made online) they would deliver the next day to me the items in the colour, size etc. that I ordered. By failing to deliver the items to me on time, they broke the promise to me to get it to me the next day. This promise was subject to a few things - on Nasty Gal's OFFER for next day delivery, they mention that you have to place your order before 11pm, and the order had to be placed on certain days of the week. There was no mention of bank holidays or any other limitations, and there was no reference made to the delivery terms being subject to any other document or page on their website. Sometimes sellers will say 'subject to our delivery terms' and include a link to another page which sets out more detail, or refer to some other place you need to go to see the full terms and conditions that will apply.
This was not the case with Nasty Gal - both at checkout and on my confirmation of purchase the delivery terms were set out very simply as above.
In the circumstances therefore, they breached the agreement when they failed to deliver my order the next day.
I had previously paid and signed up for the 'NGVIP' subscription on the Nasty Gal website, whereby I paid and and provided my details in exchange for a year of 'UNLIMITED' next day delivery when I order from NastyGal.com. Again, next day delivery was subject to orders being placed before 11pm on certain days of the week, and there was an additional element - certain postcodes were excluded from the next day delivery service. Therefore if you placed an order that was to be delivered to one of these postcodes, it was part of the agreement that they would not provide the next day service, and instead, a one-day or so service.
A few weeks later Nasty Gal placed a notice on their website stating that due to the COVID-19 situation they were no longer honouring these paid subscriptions, i.e. no longer honouring those who had entered into this agreement with them.
In this instance they were breaking their promise and the agreement with customers who had purchased this service.
Of course, in light of the lockdown situation it was likely that customers would be understanding and not seek to take any action against them in the circumstances, and they were well aware of that.
What is somewhat strange is that Nasty Gal were still advertising a one-off next day delivery service on their website. So it wasn't that next day delivery was no longer possible, it was just going to cost more. This makes me wonder whether they was working with a courier company who then said to them - sorry but we are going to need to charge you more than usual in the circumstances - and Nasty Gal chose to break their contracts with their customers and pass on this cost to them, rather than take the cost of this themselves and stay true to customers. This raises the question - should retailers be behaving in this way to save their business?
In my case, I chose to accept the situation, and agreed to pay an additional premium on top of my subscription to get my next day delivery. But it is not right for a retailer to enforce this on all customers, without giving them a choice. There may well be customers who never benefitted from the next day delivery service that they had signed up to at all. In this case, for customers who had signed up for the service 14 days or less before the notice was put up, they could use their rights under the Consumer Rights Act to obtain a full refund, as we discussed in the previous post.
In the next post in this series, we will be answering the final question you'll ask when facing problems shopping online -
"So what can I do?"
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Best wishes and safe shopping.
Your KYR Team