Garden Furniture - Made to Order

da_rule

Hoping for a bit of advice. A colleague at work makes garden furniture and sells it (via Facebook). It's good quality and I've bought a couple of bits off of him. He takes a 25% deposit via PayPal with the balance paid when he delivers the item or they collect it (either with cash or via PayPal).

Anyway, we were discussing the 14 day return period under the distance selling regs. He seemed to be of the opinion that it didn't apply to him as his items were "made to order". When someone orders there is a list of things that they can vary (colour, size, finish etc). There are options for each of these areas that can be changed (so a list of available colours etc). The customer cannot order anything that is outside of the prescribed list.

My understanding is that the 14 day period applies to all items, unless they are 'bespoke' (rather than made to order), and that just having a list of available options does not mean that the item is bespoke, as he could (if he had the space), make and stock one of each variation. Is this correct? Also, am I right in saying that it does not apply to items that are collected rather than delivered?

If it is not exempt, is there anything he can do to make it exempt? Would removing the list (say for the colour option) and allowing customers to specify their own be sufficient? Obviously he would have to reject orders where the colour was not available, or go back and suggest alternatives, which may leave him in the same position as he's in now?

I've read that, unless he has a term in his T&C's that says otherwise, it is assumed that the seller pays the return postage costs. I suppose that putting a term in to the contrary (obviously not relevant to faulty only to changing mind situations) might dissuade people from changing their mind as returning a wooden garden furniture set might be rather costly?

Any thoughts would be really helpful. I just wanted to check that my understanding of bespoke vs made to order was correct so that I could help him out. He's beginning to get a lot of orders and with summer approaching this could increase even more, and he is likely, at some stage, to fall foul of the regs unless he knows what he's doing.

DoaM

For distance sales ...

Made to order from a selection of options predefined by the seller is NOT exempt from cancellation rights. Made to order in this respect just means that this seller's business model is to not hold stock of finished product.

Bespoke means it is personalised to the consumer's specification* ... items like that WOULD be exempt from cancellation.

*As an example, supplier offers a table with options of Red, Blue or Green. Consumer wants Yellow and supplier accepts the order. As Yellow is not part of supplier's normal offering then this table would be personalised, and so exempt from cancellation. If consumer had ordered one of the other colours then it would NOT be exempt and consumer could cancel per legislation.

If payment of balance is made in cash/cheque/card on collection then it might not be a distance sale. If all payments are made online then it still is - even if the goods are collected.

PS - the applicable legislation is The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

naedanger

da_rule wrote: »

If it is not exempt, is there anything he can do to make it exempt?

What does he allow the customer to freely specify? If it is the measurements then he could say the items will be made to the customers exact measurements (so not just from a limited set of options) and allow input of those, (although it may be worth giving some typical examples for guidance - e.g. for small, medium, large versions of the goods - since some customers may still prefer not to have to choose every measurement).

If only certain colours are available then in that case I would make that fact clear to the customer e.g. keep the selection list for colour.

I suggest he explicitly and clearly highlights before purchase that because the items are made to the customer's specifications no refunds will be issued, or exchanges made, unless the goods are of unsatisfactory quality, unfit for purpose or not as described. And probably explicitly state that bespoke goods are exempt from the normal 14 day distance selling cancellation period.

I've read that, unless he has a term in his T&C's that says otherwise, it is assumed that the seller pays the return postage costs. I suppose that putting a term in to the contrary (obviously not relevant to faulty only to changing mind situations) might dissuade people from changing their mind as returning a wooden garden furniture set might be rather costly?

If he is not planning on accepting returns then is the question of who pays for the return relevant? (If he delivers faulty or wrongly described items then he must pay for the return costs.)

He's beginning to get a lot of orders and with summer approaching this could increase even more, and he is likely, at some stage, to fall foul of the regs unless he knows what he's doing.

I suggest he budgets (i.e. loads onto the price) a margin for a certain percentage of returns or losses arising from problems in any event. Even if he does not fall foul of regs he will probably still encounter problems that lead to a loss on some sales (e.g. customer claiming, rightly or wrongly, the items are faulty etc).

bris

If your friend want to be exempt then prescribed list doesn't meet the exemption rules.


If he want to be exempt then tell him to personalise them, a little gimmick that will add a name tag to the underside of the furniture. Just something simple but looks good to the customer such as a little plate screwed on such as "Johns table" this will personalise it and make it exempt.

pinkshoes

To be exempt, surely he could just offer ONE variation, then say to customers that he is more than happy to personalise items in different colours etc... should they require, and to contact him before ordering.

That way, unless it is the one item on offer that is ordered, it would be 'bespoke' which is exempt.

unholyangel

Regarding the item being collected....that kind of thinking is going to bite you in the !!!.

A contract is a distance one if it is concluded without the simultaneous presence of the trader & consumer. If a contract is not concluded, it is not binding. Meaning if you try and say contract is formed upon collection (so distance selling rights dont apply), the customer can effectively change their mind at any point up until they collect the goods (meaning your friend would be left without payment and with furniture he may struggle to sell to someone else).

Quite simply if he wants the benefits of selling his wares online/at a distance, then he must also accept the legal obligations that come with it. It can actually amount to a criminal offence if you try to restrict or remove a consumers statutory rights so I'd advise to look at what rights consumers have based on how things are rather than trying to look for technicalities to avoid them.

martinsurrey

bris wrote: »

If your friend want to be exempt then prescribed list doesn't meet the exemption rules.


If he want to be exempt then tell him to personalise them, a little gimmick that will add a name tag to the underside of the furniture. Just something simple but looks good to the customer such as a little plate screwed on such as "Johns table" this will personalise it and make it exempt.

If this is enforced trivial personalisation I doubt you would get far in court.

I think that the court would take the view that the bench was not bespoke, but maybe the name tag was.

They have the letter of the law to look at, but also consider the spirit of it, and something as obvious as a perfectly standard bench (from preset options) with a name tag stuck on, would clearly be seen as a cynical attempt to deny the consumer of their statutory rights (as was the attempt to claim that preset options were "bespoke".)

Of course, this would entail a court case, and how many consumers would bother?

And if it did work, expect every slightly shady online retailer to add your name in marker somewhere on your order, making it "bespoke".

da_rule

Thanks for the comments. I think the best bet will be for him to just factor a bit extra into his price to cover the potential returns.

Removing one of the lists and allowing the customer to specify their own specification may also be an option. But, if he did that with size for example, he would still have to specify a range. He couldn't make a bench that was 5 meters long etc.

bris

martinsurrey wrote: »

If this is enforced trivial personalisation I doubt you would get far in court.

I think that the court would take the view that the bench was not bespoke, but maybe the name tag was.

They have the letter of the law to look at, but also consider the spirit of it, and something as obvious as a perfectly standard bench (from preset options) with a name tag stuck on, would clearly be seen as a cynical attempt to deny the consumer of their statutory rights (as was the attempt to claim that preset options were "bespoke".)

Of course, this would entail a court case, and how many consumers would bother?

And if it did work, expect every slightly shady online retailer to add your name in marker somewhere on your order, making it "bespoke".

The law says personalisation is exempt from the distance sales and it's exactly that.


Making it part of the furniture would comply with the law so there is no debate on this, just your personal opinion that the law doesn't back up.

martinsurrey

bris wrote: »

The law says personalisation is exempt from the distance sales and it's exactly that.


Making it part of the furniture would comply with the law so there is no debate on this, just your personal opinion that the law doesn't back up.

The law DOESNT say the selecting options from a preset list isn't bespoke, that was set by Government guidance after the law was in place.

If DFS insisted on scribbling your name on the bottom lining of a sofa is that "personalized" and so exempt?

As I said, it would take a court case to decide, but would they consider such a trivial forced attempt as "bespoke", I doubt it.

martinsurrey

bris wrote: »

The law says personalisation is exempt from the distance sales and it's exactly that.

and FYI the law says

the supply of goods that are made to the consumer’s specifications or are clearly personalised;

so don't claim its black and white, it has to be clear personalisation, which isn't defined in the Act.