Adidas World Cup Shirts Don't fit Advertised Size 29 November 2022 at 3:57PM in Consumer rights 69 replies 2.2K views

the_lunatic_is_in_my_head

Although we are no longer in the EU and a higher court may pass their own judgement, for an individual seeking to articulate on the balance of probability in small claims the EU's thoughts on their Directives from which our legislation directly comes from and must adhere to would certainly be a good point on which to focus.

It's a bit long but the highlights are:

Since this rule is an exception from the more general rule of the CRD giving consumers the right of withdrawal from distance/off-premises contracts, it should be interpreted narrowly.

Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision.   

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

5.11.2.   Goods made to the consumer’s specifications or clearly personalised

Article 16 (c) the supply of goods made to the consumer’s specifications or clearly personalised;

‘Goods made to the consumer’s specifications’ are defined in Article 2 of the CRD as ‘non- prefabricated goods made on the basis of an individual choice of or decision by the consumer’. Recital 49 of the CRD refers to ‘tailor-made curtains’ as an example of goods made to the consumer’s specifications or which are clearly personalised.

Since this rule is an exception from the more general rule of the CRD giving consumers the right of withdrawal from distance/off-premises contracts, it should be interpreted narrowly.

So, this exception should cover, for example:

—	goods, for which the consumer has provided specifications, such as measurements for furniture or the size of a fabric;

—

goods, for which the consumer has requested specific personalised features, such as a particular design for a car that is made to order or a specific component for a computer, which has to be individually procured for that particular order and which was not part of the trader’s general offer to the public;

—	address labels with the consumer’s contact information.

Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

—	choosing furniture with specific colour or texture by selecting from the manufacturer’s catalogue;

—	car with additional equipment, selected from the manufacturer’s catalogue;

—	a set of furniture on the basis of standard elements.

Furthermore, the exception does not apply to service contracts leading to tangible outcomes. In case C-208/19 NK (Individual house project) the Court held that the contract between an architect and a consumer, according to which the former is required to prepare the designs for the construction of a new building, cannot be regarded as falling under Article 16(c) CRD. Although the designs could be provided in tangible form (on paper or digital), the subject matter of the contract is an intellectual service – architectural design, and the subsequent delivery has only ancillary function (139).

This reasoning of the CJEU highlights the importance of the creative process for the occurrence of the tangible result as a decisive factor for the classification of the contract. Similar reasoning could be applied to other intellectual services (e.g. provision of accounting or legal advice, or family event photography) whose results could be presented in tangible form.

In contrast, where the exception applies, the restriction on withdrawal from contracts for the supply of goods made to the consumer’s specifications or clearly personalised is absolute and does not depend on whether the trader has started working on the order or not. This was confirmed in case C-529/19 Möbel Kraft, were the Court observed that this is the only interpretation of Article 16(c) CRD that could ensure legal certainty, which is one of the objectives of the Directive, as noted in Recitals 7 and 40 thereof (140). The existence of the consumer’s right of withdrawal would be at issue if it depended on the state of progress of the performance of the contract by the trader, a state of progress of which the consumer is not, as a general rule, informed and over which he or she has, a fortiori, no control. Moreover, such interpretation would not be reconcilable with the obligation of the trader to provide clear pre-contractual information.

Money_Grabber13579

Until it is tested in court, no one is ever going to know for sure whether this type of scenario counts as customised goods. Some will say it is, others will say it isn’t.

However, as an employee of a large multinational organisation, I know that they really don’t like being dragged through the courts. It happens, but they generally try to avoid it. One of the ways that they try to avoid it is to make sure that their lawyers scrutinise everything before it is made public. So I’d have thought that if the T&C’s say they can’t be returned, their lawyers must be pretty happy that they aren’t breaching the law.

It’s different for a small company or sole trader, who often fly by the seat of their pants.

Manxman_in_exile

the_lunatic_is_in_my_head said:

...Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

—	choosing furniture with specific colour or texture by selecting from the manufacturer’s catalogue;

—	car with additional equipment, selected from the manufacturer’s catalogue;

—	a set of furniture on the basis of standard elements.

That makes sense to me.   Picking the names Messi, Di Maria and de Bruyne from a list of name options linked to their respective national shirts is not going to produce a shirt that is "unique... according to the individual wishes... [of]... the consumer."

I'm sure Adidas will sell hundreds of thousands if not millions of Argentine and Netherlands shirts with those names on.

Moreover, the names are being slected "... from the standard (pre-set) options provided by the trader... "

jon81uk

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

...Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

—	choosing furniture with specific colour or texture by selecting from the manufacturer’s catalogue;

—	car with additional equipment, selected from the manufacturer’s catalogue;

—	a set of furniture on the basis of standard elements.

That makes sense to me.   Picking the names Messi, Di Maria and de Bruyne from a list of name options linked to their respective national shirts is not going to produce a shirt that is "unique... according to the individual wishes... [of]... the consumer."

I'm sure Adidas will sell hundreds of thousands if not millions of Argentine and Netherlands shirts with those names on.

Moreover, the names are being slected "... from the standard (pre-set) options provided by the trader... "

I really doubt they are selling more than hundreds in certain sizes, particularly children’s. That’s where I see it as to your specification, a particular name on a particular size. If no other customer ever wants age 9 with Messi then you do indeed have a unique item. 

Also if this ever does go to court and get a ruling all that will change is having to type the name into a box, many people will still want the players names and will have to check the spelling themselves.

the_lunatic_is_in_my_head

jon81uk said:

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

...Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

—	choosing furniture with specific colour or texture by selecting from the manufacturer’s catalogue;

—	car with additional equipment, selected from the manufacturer’s catalogue;

—	a set of furniture on the basis of standard elements.

That makes sense to me.   Picking the names Messi, Di Maria and de Bruyne from a list of name options linked to their respective national shirts is not going to produce a shirt that is "unique... according to the individual wishes... [of]... the consumer."

I'm sure Adidas will sell hundreds of thousands if not millions of Argentine and Netherlands shirts with those names on.

Moreover, the names are being slected "... from the standard (pre-set) options provided by the trader... "

I really doubt they are selling more than hundreds in certain sizes, particularly children’s. That’s where I see it as to your specification, a particular name on a particular size. If no other customer ever wants age 9 with Messi then you do indeed have a unique item. 

Also if this ever does go to court and get a ruling all that will change is having to type the name into a box, many people will still want the players names and will have to check the spelling themselves.

Having the customer type the name is likely to lead to complaints about spelling and mistakes, that would of course be the customer’s fault and tough luck but that may cause costs (e.g customer service) and may affect a brand’s reputation when customer’s don’t like the response.

I would imagine mistakes would be more common (as tech has made people careless) than change of mind returns where the customer actually questions their rights vs the terms (given so many don’t know their rights and believe terms are binding regardless).

There is a reason they currently have dropdown menus rather than type it yourself and whatever that reason is it will be one that, in the bigger picture, benefits the company in some way. 

the_lunatic_is_in_my_head

Money_Grabber13579 said:

Until it is tested in court, no one is ever going to know for sure whether this type of scenario counts as customised goods. Some will say it is, others will say it isn’t.

However, as an employee of a large multinational organisation, I know that they really don’t like being dragged through the courts. It happens, but they generally try to avoid it. One of the ways that they try to avoid it is to make sure that their lawyers scrutinise everything before it is made public. So I’d have thought that if the T&C’s say they can’t be returned, their lawyers must be pretty happy that they aren’t breaching the law.

It’s different for a small company or sole trader, who often fly by the seat of their pants.

This reminds me of Amazon’s price parity policy.

It’s not anti competitive, oh you want to investigate whether it is or not, ummm we’ll drop the policy. 

These big companies are taking a gamble on getting away with it vs the market being investigated by a regulatory body and it seems that doesn’t happen often with consumer rights, perhaps because it’s felt there’s no need as the legislation does the job. 

Manxman_in_exile

jon81uk said:

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

...Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

—	choosing furniture with specific colour or texture by selecting from the manufacturer’s catalogue;

—	car with additional equipment, selected from the manufacturer’s catalogue;

—	a set of furniture on the basis of standard elements.

That makes sense to me.   Picking the names Messi, Di Maria and de Bruyne from a list of name options linked to their respective national shirts is not going to produce a shirt that is "unique... according to the individual wishes... [of]... the consumer."

I'm sure Adidas will sell hundreds of thousands if not millions of Argentine and Netherlands shirts with those names on.

Moreover, the names are being slected "... from the standard (pre-set) options provided by the trader... "

I really doubt they are selling more than hundreds in certain sizes, particularly children’s. That’s where I see it as to your specification, a particular name on a particular size. If no other customer ever wants age 9 with Messi then you do indeed have a unique item. 

Also if this ever does go to court and get a ruling all that will change is having to type the name into a box, many people will still want the players names and will have to check the spelling themselves.

You seem to be shooting your own argument in the foot there! 

If you are going to say that "... many people will still want the players names... " then you are surely accepting (1) that the shirts are not in any respect "personalised" for any individual consumer, and also (2) that there can be no legitimate reason for not allowing the consumer to cancel the order as many other people will still want it? 

Don't you also have to accept that they are not produced according to the consumer's own specification if they are simply selecting from a range of options offered by the trader?

I think part of the problem is confusion bewteen the verb "to specify" and the noun "specification".  If I order a t-shirt available only in the colours red, green and blue and I select the colour green, then yes, you could argue that in selecting green that I have "specified" green, but the t-shirt wouldn't be produced to my "specification" unless I specified a colour other than those available as standard.  eg yellow.  The trader would then be free either to accept or to reject my order with my specification of yellow.  If they accept it, I can't cancel it.  But if I simply "specify" the standard colour green, I can cancel it.

It seems quite obvious - to me at least - that selecting an Argentine shirt with the name "Messi" on the back or a Netherlands shirt with "de Bruyne" on the back is a selection from standard pre-set options made available by Adidas to the consumer and they are not examples of items that are either personalised for the consumer or produced to the consumer's own specification.

One wonders why Adidas make the name options available in the first place...  

the_lunatic_is_in_my_head

Manxman_in_exile said:

One wonders why Adidas make the name options available in the first place...  

Choice overwhelms people and can lead to them walking away, pre set options likely result in higher sales. 

user1977

the_lunatic_is_in_my_head said:

Manxman_in_exile said:

One wonders why Adidas make the name options available in the first place...  

Choice overwhelms people and can lead to them walking away, pre set options likely result in higher sales. 

Helps them with the speling of those diffuclt furrin names.

Manxman_in_exile

the_lunatic_is_in_my_head said:

Manxman_in_exile said:

One wonders why Adidas make the name options available in the first place...  

Choice overwhelms people and can lead to them walking away, pre set options likely result in higher sales. 

I know.  (It was a pathetic attempt at sarcasm... )