Distance Selling

GrahamLM52

This is a what-if? question....

The Motor Ombudsman site has some good information regarding "Distance Selling Regulations" but they do not cover the scenario outlined below.

They state that a Distance Sale is defined as: "When an order is placed and paid for online, or by telephone, and the product is delivered to the customer’s home without any face-to-face contact with the retailer".

Here is my scenario: I see a car that I like at a main dealer. I visit the main dealer, check the car over and have a test drive. I cannot agree terms with the sales person so decide not to buy the car after all.

3 months later I spot the same car advertised by the same dealer on a car-buyer website but now nearly £700 less than before. I decide that that is a tempting offer and proceeded to purchase the car paying in full by bank transfer. All transactions are done on-line and the dealer delivers the car to me.

Is this still a "Distance Sale" as I had previously visited the dealer and showed an interest in buying that car?

Car_54

I can't give a 'legal' answer, but ...

When you took the test drive and did a bit of haggling, did they get your personal details?

Okell

The legal definition of a "distance sale" is to be found at para 5 of  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk).

Those regulations are based on a EU directive.  Although we have left the EU it is quite likely that a UK court would look to interpret the regulations according to EU guidance.

See p30 here:  https://commission.europa.eu/document/download/f1f42e20-e4a1-4d8b-a1ef-d06acccba34e_en?filename=crd_guidance_en_0_updated.pdf 

"Recital 20 provides further explanations of this concept, including examples of means of distance communication: ‘The definition of distance contract should cover all cases where a contract is concluded between the trader and the consumer under an organised distance sales or service-provision scheme, with the exclusive use of one or more means of distance communication ( such as mail order, internet, telephone or fax ) up to and including the time at which the contract is concluded. That definition should also cover situations where the consumer visits the business premises merely for the purpose of gathering information about the goods or services and subsequently negotiates and concludes the contract at a distance. By contrast, a contract which is negotiated at the business premises of the trader and finally concluded by means of distance communication should not be considered a distance contract. Neither should a contract initiated by means of distance communication, but finally concluded at the business premises of the trader be considered a distance contract. Similarly, the concept of distance contract should not include reservations made by a consumer through a means of distance communications to request the provision of a service from a professional, such as in the case of a consumer phoning to request an appointment with a hairdresser..."

I would tentatively suggest that a simple test drive and simply checking the car over three months ago could meet the requirement in bold above and would not prevent a subsequently negotiated sale from being a distance sale, but it might depend on how far you discussed terms at the time and whether that could be described as just "gathering information" or more than that.  You might be successful in arguing that it was a distance sale - or you might not...

(As @Car_54 has pointed out, you'll have an easier job if they have no record of previous contact - but I suspect they will for this very reason)

GrahamLM52

Thank you. They certainly have my contact details, but whether they would remember me, I wouldn't know. After the test drive the dealer refused to budge on price at all. He said "no" to including any accessories (mats, granny charger etc) or any "free" servicing. So yes, a bit of haggling on my part at least.

DullGreyGuy

It is certainly against the spirit of the CCR and the former DSR which effectively was to ensure you had similar opportunity to inspect the item as if you had gone in store. You've already fully examined the item prior to contracting and so it shouldn't apply. 

You would fail to meet the definition under the CCR as it requires all communication with the supplier prior to binding the contract to be done using distance methods (email, telephone, VC etc) and cannot be that you were in "simultaneous physical presence of the trader and the consumer" prior to contracting. 


Clearly you may get away with it if they dont put 2 and 2 together but it will be a false claim.