Cancelling under Distant Selling Regulations

halibut2209

Don't forget that returning goods and telling them you are cancelling are two separate things. If they haven't told you of your DSR rights either in writing or email, then you have 3 months to tell them you are cancelling and are therefore legally allowed your postage back.

Their own returns policy is irrelevant as you cannot sign your legal rights away.

WTFH

halibut2209 wrote: »

Don't forget that returning goods and telling them you are cancelling are two separate things. If they haven't told you of your DSR rights either in writing or email, then you have 3 months to tell them you are cancelling and are therefore legally allowed your postage back.

Their own returns policy is irrelevant as you cannot sign your legal rights away.

Strangely enough, I was buying something the other day off a supplier and one of the tick boxes said "I have downloaded and read the terms and conditions" Above the box was a link to downlad a PDF. I could not proceed with the sale without clicking that box.

So, if I tick a box to say I have downloaded and read the terms and conditions, then I am accepting that I have done so, even if I'm too lazy to do so.

halibut2209

Not sure that would count. I'd argue that you haven't been given the relevant information in a durable form. Having DSR information available to download is not the same as being given them.

The seller has to give you the terms, otherwise it's 3 months.

EDIT: There's also nothing to stop the seller altering the PDF at any moment. They can't alter an email after it's been sent

WTFH

halibut2209 wrote: »

Not sure that would count. I'd argue that you haven't been given the relevant information in a durable form. Having DSR information available to download is not the same as being given them.

The seller has to give you the terms, otherwise it's 3 months.

EDIT: There's also nothing to stop the seller altering the PDF at any moment. They can't alter an email after it's been sent

They can't alter a PDF that's saved to your computer, in the same way that they can't alter an email after you've received it.

Being asked to download it before you can proceed, then asking you to confirm you downloaded it and read it is the same as being given it. You are being given a file which you must confirm you have received and read. That is more "durable" than an email, which you could claim you never received, or a letter in the post, which could go missing.
You are confirming that you have received (by downloading) a document which is now in your possession and cannot be altered by the company. That is more durable than any other method I can think of. You have been given the document and you have confirmed you have received it.

What's wrong with that?

unholyangel

WTFH wrote: »

Strangely enough, I was buying something the other day off a supplier and one of the tick boxes said "I have downloaded and read the terms and conditions" Above the box was a link to downlad a PDF. I could not proceed with the sale without clicking that box.

So, if I tick a box to say I have downloaded and read the terms and conditions, then I am accepting that I have done so, even if I'm too lazy to do so.

18.5.4 Declarations can be acceptable if they are of matters wholly and necessarily within the consumer's knowledge (for example, their age), and a free choice is given as to what to say. But whether any declaration is in fact fair will depend on how it is used. If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice. The Regulations apply to unwritten as much as to written terms.

18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.


18.5.6 In practice consumers often do not read, and rarely understand fully, any but the shortest and simplest contracts. It might be better if they tried to do so, but that does not justify requiring them to say they have done so whether they have or not. The purpose of declarations of this kind is clearly to bind consumers to wording regardless of whether they have any real awareness of it. Such statements are thus open to the same objections as provisions binding consumers to terms they have not seen at all – see Group 9.


18.5.7 Much more likely to be acceptable is a clear and prominent warning that the consumer should read and understand the terms before signing them. The potential advantages such wording can confer are described, together with certain conditions that need to be met, in paragraphs 14.1.7 and 14.1.8. See Annexe A, Group 18(e), for illustrative examples of wording relevant to declarations in general.

From OFTs unfair contract terms guidance:
http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf

halibut2209

WTFH wrote: »

They can't alter a PDF that's saved to your computer, in the same way that they can't alter an email after you've received it.

But you could. With email, there is a record of when it was sent, when it was received, and the content. There isn't with a PDF. It's no different from saying "These are the terms. Click agree to continue". I don't believe it would count as durable.

I also don't think that being required to install additional software to read the terms would be considered carrying out the regulations correctly.

WTFH

halibut2209 wrote: »

But you could. With email, there is a record of when it was sent, when it was received, and the content. There isn't with a PDF. It's no different from saying "These are the terms. Click agree to continue". I don't believe it would count as durable.

I also don't think that being required to install additional software to read the terms would be considered carrying out the regulations correctly.

You can alter an email too, and if the sender doesn't keep a record of it, then there is no proof that what you have is an unaltered original.

It's easier to edit an email, or to claim you never received it, than it is to edit a PDF without leaving fingerprints all over it.

I know some people harp on here about "durable", but if you're saying a pdf isn't durable then the only acceptable thing would be for both parties to physically sign a document and have it witnessed, then that document be stored at a third party. Everything else is not durable!

halibut2209

Durable would be ideally on the invoice/receipt. email is acceptable as that can be proven to have been sent. It's a stretch to say you must download this and it requires you to install extra software.

A PDF is fine as long as the seller prints it out and sends it to you

unholyangel

On the first element, the ECJ found that the use of the term "receive" in Article 5 (in relation to the provision of durable information) was deliberately different to that used in Article 4 (dealing with pre-contractual information) which uses the word "provide". Whereas "provide" could be read more flexibly, the Court found that the use of the word "receive" and "given" implied the need for transmission of the information and passive conduct by the customer. The Court found that a link sent or provided to a customer could not satisfy this requirement since the customer must act (i.e. click on the link) in order to obtain the information.

Apparently it was already defined for the purposes of the DSRs.

So having to click to download wouldn't satisfy the requirements as it is not passive conduct by the customer.

OlliesDad

halibut2209 wrote: »

Durable would be ideally on the invoice/receipt. email is acceptable as that can be proven to have been sent. It's a stretch to say you must download this and it requires you to install extra software.

A PDF is fine as long as the seller prints it out and sends it to you

I would have to agree with WTFH that by offering a download with the relevant terms it would be durable. Obviously if the customer does not have the correct software to view the terms then they wouldn't be ticking a box to say they have downloaded and agreed to them. The retailer also has proof of when it was downloaded as it is the same time that the customer has ticked to say they have.

I would class the above as durable as an email i.e. cannot be altered after the event.