Cancelling under Distant Selling Regulations

halibut2209

unholyangel seems to have it covered

bod1467

halibut2209 wrote: »

unholyangel seems to have it covered

Indeed she has. And the "however expressed" definition covers the return of the goods as expressing the wish to cancel.

halibut2209

So, informative sidebar aside, short version is the seller has it wrong but will probably be a struggle to get the £4 back. However I would certainly follow up with an email explaining the DSRs in more detail for them

WTFH

unholyangel wrote: »

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

That would be the case only if the click was optional.

If the link is mandatory, then there is no way for the customer to proceed with the order without accepting they had downloaded and read them.

So, the order cannot be placed (i.e. before the goods are paid for or shipped) without the customer agreeing to the terms and conditions as defined at the time of placing the order. Not the terms at the time of receipt of goods, shipping or anything else.
I think unholyangel got it perfectly right IF it was possible to place an order without first confirming that you had received a copy of the terms.

Or, to put it a simpler way, if you skip part of the ordering process, you can't place the order, and part of the ordering process is to download and read the terms and conditions. The "passive conduct" is part of the order process, not an option, nor is is something sent as a link on an email. (which is what the ECJ ruling was about - email links, not downloaded documents)

halibut2209

No, that would then involve the consumer having to sign away their legal rights which cannot be done. Their legal rights are to be given the information as has been shown.

If there was a button that said "Click here to acknowledge that you cannot return these goods even if faulty" and you did so, it doesn't mean that you cannot then send them back if they don't work.

"Or, to put it a simpler way, if you skip part of the ordering process, you can't place the order, and part of the ordering process is to download and read the terms and conditions. "

But that part of the ordering process is unlawful so it's meaningless

unholyangel

WTFH wrote: »

That would be the case only if the click was optional.

If the link is mandatory, then there is no way for the customer to proceed with the order without accepting they had downloaded and read them.

So, the order cannot be placed (i.e. before the goods are paid for or shipped) without the customer agreeing to the terms and conditions as defined at the time of placing the order. Not the terms at the time of receipt of goods, shipping or anything else.
I think unholyangel got it perfectly right IF it was possible to place an order without first confirming that you had received a copy of the terms.

Or, to put it a simpler way, if you skip part of the ordering process, you can't place the order, and part of the ordering process is to download and read the terms and conditions. The "passive conduct" is part of the order process, not an option, nor is is something sent as a link on an email. (which is what the ECJ ruling was about - email links, not downloaded documents)

Read my earlier post regarding unfair contract terms and "have read and understood" declarations. Same principle.

As with email....it was decided providing a link to T&C's didn't satisfy the requirement of DSRs to send the information to consumers since the consumer had to act in order to obtain the information.

Whether you're clicking on a link to a website or clicking on a link to download.....you still have to act therefore it is not passive conduct by the customer.

WTFH

unholyangel wrote: »

Whether you're clicking on a link to a website or clicking on a link to download.....you still have to act therefore it is not passive conduct by the customer.

No, the issue with the ECJ regulation was to do with links to webpages being sent by email.

The customer has to act to be able to place the order. Part of the action of placing the order is agreeing to the terms and conditions as they have downloaded them.
If they choose not to act, they cannot place the order.

The ECJ ruling has this note in it:
"unless given to him prior to conclusion of contract in writing or such other durable medium"
So, you can go on about webpage links (which are not fixed documents, unlike downloads, please note), or you can talk about emails with links in them, but the ECJ ruling states that your comments are irrelevant if the information is given in writing or such other durable medium - which includes PDFs - prior to the conclusion of the contract. And in the case of a website where you must download the durable PDF and confirm you have downloaded it before the conclusion of the contract, then your argument is incorrect (and repeating it on here doesn't make it any less wrong)

Oh, and here it is:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=124744&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1

halibut2209

You are arguing something entirely different. And your own quote says "given to him". Providing a link to a download is not giving.

Where does the ECJ ruling state that a PDF is durable medium?

WTFH

halibut2209 wrote: »

"Or, to put it a simpler way, if you skip part of the ordering process, you can't place the order, and part of the ordering process is to download and read the terms and conditions. "

But that part of the ordering process is unlawful so it's meaningless

So, you're saying it's unlawful for a company to give a consumer their terms and conditions before the consumer is allowed to place an order?

Sorry, before I commit to buying something, I want to know what the terms and conditions are. If I don't know them, I'm going to think twice about buying - and that is exactly what the ECJ ruling is about - making sure the consumer is able to go through the T&C of the business in a static document form, such as a PDF which they have downloaded and saved on their own hard drive.

Once you've finished understanding the ECJ ruling, take a look at the OFT description of Durable Medium. Webpages are not acceptable, neither are links to webpages. But if you don't know the difference between a webpage and a document, there's no point in me trying to educate you further.

unholyangel

WTFH wrote: »

No, the issue with the ECJ regulation was to do with links to webpages being sent by email.

The customer has to act to be able to place the order. Part of the action of placing the order is agreeing to the terms and conditions as they have downloaded them.
If they choose not to act, they cannot place the order.

The ECJ ruling has this note in it:
"unless given to him prior to conclusion of contract in writing or such other durable medium"
So, you can go on about webpage links (which are not fixed documents, unlike downloads, please note), or you can talk about emails with links in them, but the ECJ ruling states that your comments are irrelevant if the information is given in writing or such other durable medium - which includes PDFs - prior to the conclusion of the contract. And in the case of a website where you must download the durable PDF and confirm you have downloaded it before the conclusion of the contract, then your argument is incorrect (and repeating it on here doesn't make it any less wrong)

Oh, and here it is:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=124744&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1

You don't seem to understand. The ECJ said the information wasn't given in line with DSRs based on 2 elements. Firstly because it was not given to the consumer, they had to act to obtain it and secondly because providing a link in a email is not durable.

The first part of that (about passive conduct by the consumer) is the relevant part. Since if you have to download something, you have to act to obtain the information, it has not been given therefore doesn't fulfil the requirements of the DSRs.