Distance selling / sale of goods act perishable items - advice please

2stixoftwixes

We also sell on Amazon and have had this issue before.
Their advice was if it is returned in a different state that sent then we could deduct.
It's all about the fact that it wasn't delivered in the first place and that is the crux of the matter
I wonder how interflora gets on.
Parcelforce have delivered it to the customers main post office for collection, so it is now less than 2 miles from her home - let's see if she bothers to pick it up now

Fosterdog

2stixoftwixes said:

A link to website TOS that they have ticked to say is fine whilst placing the order ...

That's not good enough to meet the requirements under CCRs because you can amend your ToS at any time. It's fine to show it there before the sale and have the tick box that shows they agree to it but you should also send it as an attachment to the email with confirmation of order because that is durable and can't be changed by you after the sale.

2stixoftwixes

But you can say that for ANY website  I don't think I have ever had an order confirmation from any company that contains this information written in their email.

Business Advice legal expert, and Grid Law founder, David Walker returns to explain the ins and outs of online terms and conditions, and when ticking the “I agree” box becomes legally binding.

When someone ticks an “I agree” box on a web form, they’re confirming that they accept the online terms and conditions. However, that doesn’t necessarily mean that a legally binding contract will be formed. If you’re an online retailer, that could cause real trouble for your business.

As I’ve explained in previous articles, legally binding contracts are absolutely fundamental to business. They form the basis of the relationship between a retailer and a customer but when it comes to ecommerce, they serve another important role too. They help the retailer comply with the law.

When selling online, there are a huge number of rules and regulations to abide by. The best way to comply is to have properly prepared terms and conditions and ensure your customers are bound by them.

So, in this article we are going to look at what it takes to form a legally binding contract whenever someone ticks the “I agree” box.

We’re going to look at this from two angles. First, we’re going to look at the process of forming the contract, and then we’re look at the terms of the contract itself.

Forming a contract online

When someone enters into an ecommerce contract, there’s no direct communication between the customer and the retailer. The whole process is automated. This is a crucial difference compared to other forms of electronic contract, such as when an agreement is reached between two people exchanging emails.

Without direct communication between the parties, the online retailer must take extra care to ensure that the purchaser has all the information they need to make their buying decision.

For example, the retailer must give a full description of the products or services being sold, what forms of payment are accepted and if there are any delivery restrictions.

The retailer must also be very clear about the total price the customer has to pay, including any taxes and delivery charges.

If the customer is entering into an ongoing contract, for example subscribing to a service, they need to know the length of the minimum term of the agreement and what they have to do to terminate it.

Providing all of this information (and more) is an essential part of the contract formation process and starts well before the customer places their order.

When the product or service has been properly described and the customer has all the information they need, they still need to decide if the terms on which you are offering them for sale are acceptable.

This is because online terms and conditions are non-negotiable. The customer must accept them if they want to make the purchase.

To help them decide, the customer must have every opportunity to read the online terms and conditions before they make their purchase. The best way to do this is to provide a clear link to the terms and conditions from the main website pages, and then another link on the order page. (Some people just have a link on the order page.)

When the purchaser clicks this link, it should take them directly to the terms and conditions. If they choose to, they should be able to download and print them.

Take a look back over some of David’s contracts-related articles:

I always advise my clients to have a link to the terms and conditions from the main website pages because then, customers don’t have to go through the whole order process just to find them. This enables them to make a much earlier decision about whether or not they’re acceptable.

The final stage of the contract formation process is for the customer to confirm their agreement to these terms and conditions. They do this by ticking the “I agree” box and then clicking the order button.

But is this good enough?

After all, how many people actually read them? Just think of your own personal experiences when shopping online. You see the product, the price, enter your credit card details and then tick to accept the terms and conditions without giving them a second thought.

Some people take the view that retailers should do more to ensure customers read the terms and conditions by making them scroll all the way through to the bottom. However, that’s likely to be off-putting for many customers leading to lost sales for the retailer.

My view is that so long as you have done all you can to give people the opportunity to read the terms and conditions before ordering, you should be fine.

Some retailers have their system set up so that the terms and conditions are emailed to their customers after making a purchase. Although this is helpful as a record of the contract, from a legal perspective, it’s too late to form a contract because by the time the email arrives, the contract has already been formed.

businessadvice dot co dot uk

LABMAN

On most occasions the contract is not formed until goods are dispatched.

DoaM

2stixoftwixes said:

But you can say that for ANY website  I don't think I have ever had an order confirmation from any company that contains this information written in their email.

Yes you can (mostly) ... and they are (mostly) all technically falling foul of consumer legislation. It's just that most consumers don't realise this.

unholyangel

I'd also point out there is no exemption for "perishable" goods. The actual exemption is for goods "liable to deteriorate or expire rapidly". 

There are many items that are perishable, but that might not deteriorate or expire rapidly. Look at cheese, generally accepted as a perishable but keeps for months. I wouldn't call that rapid deterioration! Similar scenario occurs with goods made to the consumers specifications or clearly personalised. People often quote that exemption when selling made to order goods. All goods made to the consumers specification or clearly personalised are going to be made to order, but being made to order doesn't make it to the consumers specifications or clearly personalised. 

I'm not saying that the exemption definitely doesn't apply here, I don't know enough about plants in general...never mind any specific plants! Just cautioning against assuming you can rely on the exemption just because an item might have a shelf life. 

2stixoftwixes

I think bunches of flowers are pretty perishable!

davidmcn

unholyangel said:

Look at cheese, generally accepted as a perishable but keeps for months. I wouldn't call that rapid deterioration!

How long would you like your cheese to be hanging around in an unrefrigerated parcel depot?

Jumblebumble

DoaM said:

Were those terms presented to the consumer (in a durable means - email is OK; a link to website T&Cs is not) before the consumer became bound by the terms? (e.g. in an order confirmation email). If yes then you're in the clear - if no then the consumer may have a case. However I'd still suggest sticking to your guns and declining a refund for perishable goods - the consumer would then need to raise an MCOL action.

I agree let em sue you
District Judges are quite capable of simply resolving this kind of problem on the basis of common sense and decency and ignoring the strict letter of the law and there is not much the looser can do if this does happen

unholyangel

2stixoftwixes said:

I think bunches of flowers are pretty perishable!

Yes they are, but you told us it was plants, not a bunch of flowers. A bunch of flowers is different because it doesn't matter how well you care for them, they will still die.

davidmcn said:

unholyangel said:

Look at cheese, generally accepted as a perishable but keeps for months. I wouldn't call that rapid deterioration!

How long would you like your cheese to be hanging around in an unrefrigerated parcel depot?

Well you're conflating issues, you're talking about improper storage rather than just storage. But it depends on the cheese. Hard cheeses fare better due to having less moisture. Some do not need to be kept in a fridge - grated parmesan for example. If you don't store tinned food correctly, it will also expire.....its still not considered a perishable though, never mind an item that will deteriorate or expire rapidly. 

Also remember that it's the traders obligation to deliver. The fact they outsource to a third party who may not have adequate facilities is entirely their choice.