DSR's Get Out?

No1

Interesting article - Make sure you always read those T&C's thoroughly.

Well....perhaps not a get out, but it's easy to come unstuck.

gordikin

Nope, they cannot insist you are a business just because you bought something from them. If you bought something as a consumer you are a consumer. You cannot be forced to contract out of your legal rights.

bris

gordikin wrote: »

Nope, they cannot insist you are a business just because you bought something from them. If you bought something as a consumer you are a consumer. You cannot be forced to contract out of your legal rights.

Not strictly true though is it. If the website insist on only dealing with other businesses then DSR does not apply. They may have to make the customer aware of this fact, but if the customer knows that he can only buy as a business then then they should be made aware of the fact they will have no DSR protection.
A good example will be Dell, if you buy from the business section of Dell then as people have found out they have no DSR protection.

bingo_bango

The OFT have already been down this route.

'Consumer means any person who, in buying something to which the
DSRs apply, is acting for purposes that are outside their business.'

I however am of the opinion that if a company wishes to state that it wll only deal with a business, then it must take steps to ensure that only businesses are able to buy from it. Otherwise they wouldn't appear to have a defence against a DSR claim on the basis that as pointed out above, you cannot force someone to contract out of their legal rights by way of a unilateral statement.

There are issues with doing so, which could raise matters under both CPUTRs and UTCCRs. The problem is that until someone takes a civil case forward, we have no judicial opinion, and that's the only way we can have a definitive answer.

Mark_Hewitt

I would imagine if a claim came to court the retailer would have to show that they had taken reasonable steps to ensure that they were dealing with a business client and not a consumer client. Simply stating "we only deal with business" in the T&C's wouldn't be enough.

bitemebankers

Agreed, Mark.

In general, business-only suppliers do go to some lengths to ensure the customers they're dealing with are genuine traders. As a business customer you typically need to provide a letterhead and a trade reference or two before they'll deal with you. I imagine a court would want to see that these kind of steps had been taken in advance.

Esqui

Mark_Hewitt wrote: »

I would imagine if a claim came to court the retailer would have to show that they had taken reasonable steps to ensure that they were dealing with a business client and not a consumer client. Simply stating "we only deal with business" in the T&C's wouldn't be enough.

I imagine something to the effect of "By ordering from us, you confirm you are a business" in the T&Cs would neatly get round that one.

mo786uk

I think as long as they make it perfectly clear before the contract is formed and require some active action on the side of the purchaser such as a tick box as mentioened then they should be able to get around it.

there was a case on here involving Dell but I believe that person purposefully put in dodgy info.

NoSatisfaction

Esqui wrote: »

I imagine something to the effect of "By ordering from us, you confirm you are a business" in the T&Cs would neatly get round that one.

Probably true for online orders but for telephone orders they would need to read their T&Cs out.

Mark_Hewitt

Esqui wrote: »

I imagine something to the effect of "By ordering from us, you confirm you are a business" in the T&Cs would neatly get round that one.

Doubtful. They would, at the very least either require you to fill in a business name as part of the order, or check a box to confirm that you are a business.

The point here is that it sounds like this company knows fine well they are dealing with consumers, but doesn't want to be held to their legal obligations.

bris

Mark_Hewitt wrote: »

Doubtful. The point here is that it sounds like this company knows fine well they are dealing with consumers, but doesn't want to be held to their legal obligations.

I am not so sure that they do want to deal with consumers. The site is clearly focused on dropshipping and wholesale. The author of the article even admits they can.
" However, after some consideration of the retailer in this example, it would appear that they can."
Business to business websites do exist and don't want to deal with consumers.