Custom/Bespoke and Drops Downs

Okell

I think that generally a product that has been assembled from components selected from a set of drop-down menus will not be categorised as being built to a consumer's own specifications.

But I think I'd also agree with @Alderbank and @A_Geordie that it might not always be that straightforward and that some cases might need to be looked at more closely  - depending on the number of components and menus, the range of choices on each menu, and the perveived "popularity" of the specific combination of options chosen by the consumer.

Unfortunately none of that really answers the OP's question - unless his combination of chosen components can variously be described as standard/normal/usual/popular etc

Okell

Alderbank said:

From a simplistic view - even if I have selected the parts and they are connected to each other, it doesnt prevent them from being disassembled and reused and thus not classed as true custom. Only exception I can think of is maybe the CPU which will have thermal paste applied before attaching to the Mobo

Again it depends on the facts but I don't think that is a strong argument.

The legislation and certainly the guidance considers the assembled item to be a single product and talks about whether that finished product, and not just its disassembled components, would be likely to sell to another consumer.

That seems reasonable in a commercial world where the cost of paid employees sourcing, assembling and testing the product is not trivial.

Say a craft trader on Etsy knits a jumper for you which has a knitted intarsia picture of your dog. Is it reasonable to tell them to unravel the different coloured wools and just wind them back on the cones?

There are companies who build giant models from Meccano or Lego bricks, possibly spending many hours to do so. Is it fair to say, 'I've changed my mind. Take it all apart'?

I agree.

If something is personalised or made to the consumer's own specifications then it's irrelevant whether it can be disassembled and resold or not.  It can't be cancelled.

A_Geordie

eskbanker said:

A_Geordie said:

Anyway, another thing to bear in mind, is that once you've placed the order, you immediately lose your rights even if the components are yet to be sourced and/or being built. There is an EU case Möbel Kraft GmbH & Co. KG v ML that confirmed this position. 

Specifically which rights are lost at that stage?

@Okell and @the_lunatic_is_in_my_head are correct, which is what that EU case confirmed. The consumer tried to cancel a bespoke order before the kitchen was being built and the court said the consumer loses the right to withdraw as soon as the contract was formed regardless at what stage the bespoke goods are at.  Effectively preventing the consumer from relying on a loophole arguing that there is still a window to withdraw if the goods are yet to to be built.

Interestingly, I think in that case the referring court also asked the ECJ to confirm whether the right to withdraw is lost if there are certain pre-fabricated goods that were then customised but could be returned to their original state where the cost of doing so was low or minimal to the trader.The ECJ chose not to answer that question in their decision so I think that is still open for debate, but based on the language of the law as written, nothing in the language suggests any carve outs such as this would apply.

Although we talk of the exception rule applying when it comes to bespoke goods, that word doesn't actually exist in the legislation. Rather, the actual language in the CCRs says: 

28(1) This Part does not apply as regards the following:  

...

(b) the supply of goods that are made to the consumer's specifications or are clearly personalised

In my opinion, there's a stark difference between something that is to an extent, pre-built goods with the option to swap out certain components from a pre-select menu of items i.e. DELL and (in the OP's case) ordering goods that have to be built from scratch with the consumer specifying every component that will go into the build - I would argue this is analogous to someone ordering a custom-measured kitchen as in the Mobel Kraft case.

On the face of it, the latter point appears to meet 28(1) of supplying goods made consumer's specifications and whilst you cannot predict how a court would determine a case like this, I would be highly surprised if a judge ruled that the consumer would not lose their right to cancel given the level of input provided by the consumer. 

eskbanker

A_Geordie said:

In my opinion, there's a stark difference between something that is to an extent, pre-built goods with the option to swap out certain components from a pre-select menu of items i.e. DELL and (in the OP's case) ordering goods that have to be built from scratch with the consumer specifying every component that will go into the build - I would argue this is analogous to someone ordering a custom-measured kitchen as in the Mobel Kraft case.

It seems to me that there is an argument that a computer assembled from standard components differs from a custom-measured kitchen - that latter case does refer to a number of components being unusable elsewhere:

The referring court adds, in that respect, that the prefabricated parts of the kitchen could have been dismantled without loss for the trader; only the niche back wall, the worktop, the trimming and the connection pieces would have been adjusted on-site and would not have been reusable elsewhere.

There is passing reference to computer assembly and how easily reversible it is:

In that respect, the national court points out that the Bundesgerichtshof (Federal Court of Justice, Germany), in its case-law prior to the entry into force of Directive 2011/83, held that the right of withdrawal is not excluded where the goods can be restored – without loss of substance or functionality – to the condition they were in prior to customisation, at a relatively low cost. The Bundesgerichtshof thus considered that, in the case of a computer made in accordance with the purchaser’s specifications, dismantling costs amounting to 5% of the value of the goods remained relatively low.

but the referring court seeks an answer on whether scale of dismantling costs is relevant:

Does the answer depend on whether it would be possible to return the goods to the state they were in before customisation with only low dismantling costs, such as some 5% of the value of the goods?

without this matter being addressed as far as I can see (happy to be corrected!), unless the apparent lack of express response effectively translates to 'no'.

A_Geordie

eskbanker said:

Does the answer depend on whether it would be possible to return the goods to the state they were in before customisation with only low dismantling costs, such as some 5% of the value of the goods?

without this matter being addressed as far as I can see (happy to be corrected!), unless the apparent lack of express response effectively translates to 'no'.

It's been a while since I looked at this decision but the answer is perhaps there after all: 

21. In that respect, according to the Court’s settled case-law, where provisions of EU law do not refer to
the law of the Member States for the purpose of determining their meaning and scope, they must be
given an autonomous and uniform interpretation throughout the European Union, which
interpretation must take into account not only the wording of those provisions but also their context
and the objective pursued by the legislation in question.

22. However, there is nothing in the wording of Article 16(c) of Directive 2011/83 to indicate that the
exception to the right of withdrawal provided for in that provision is dependent on the occurrence of
any event subsequent to the conclusion of the off-premises contract relating to ‘the supply of goods
made to the consumer’s specifications or clearly personalised’. On the contrary, it is expressly
apparent from that wording that that exception is inherent in the very subject matter of such a
contract, namely the production of goods manufactured to the consumer’s specifications, within the
meaning of Article 2(4) of that directive, with the result that that exception applies from the outset to
that consumer, without being conditional on the occurrence of such an event and irrespective of
whether that contract has been performed or whether it is being performed by the trader.

Article 2(4) of the Directive is this definition: 

‘goods made to the consumer’s specifications’ means non-prefabricated goods made on the basis of an individual choice of or decision by the consumer

The above definition does not exist in the CCRs and I don't know quite know why but my understanding is that the goods were not pre-fabricated goods and so the exemption applies from the outset and since the Directive doesn't call out any conditions subsequent to the conclusion of a contract, the consumer does not have a right to withdraw. Nevertheless, the Supreme Court in 2014 when considering UK regulations transposed from EU legislation said this: 

A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. This is now well settled.

As Mobel was a pre-Brexit decision, it is binding on the lower courts up to the Court of Appeal. Applying the definition above, I the question is at what point does something cross from non-pre-fabricated to pre-fabricated goods? For example, what about sheets of timber like MDF or plywood that are cut to size according to customer specifications?

Anyway, I digress and I believe I may have found the answer to the OP's issue, which lies in the guidance published by the Director-General for Justice. Link here: https://commission.europa.eu/system/files/2019-07/crd_guidance_en_0_updated_0.pdf

See page 54: 

... This exception should cover, for example:

• goods, for which the consumer has requested specific personalised features, such as ... 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

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 make up the goods by picking from the standard (pre-set) options provided by the trader, such as colour or additional equipment in a car, or makes up a set of furniture on the basis of standard elements, it should not be possible to speak of either 'specification' or 'personalisation' in the narrow sense of this provision.

Now you may disagree with me but I would say that the above is not too dissimilar to the comparison I made between Dell and PC specialists. I'm still currently on the side of the fence that a customer-specific built to order PC is not part of a general offering to the public. Naturally, the OP has to use a drop down menu to select the components because that's how the PC specialist set up the way the order is submitted, but there's still an argument to say that once the order is placed, the PC specialist will have to procure the components individually in order to meet the customer's specifications, as opposed to taking a PC off the shelf. There may also be some force in arguing that built to order PCs typically take longer to be delivered  due to the fact that they are customised for each individual customer specifications.

Perhaps I am wrong entirely and the interpretation is that for something to be 'procured' it must be something obtained that is not physically in the possession of the trader's inventory, though I think that could create unintended consequences especially where the manufacturer is also the contracting party to the customer.  

eskbanker

A_Geordie said:
Article 2(4) of the Directive is this definition: 

‘goods made to the consumer’s specifications’ means non-prefabricated goods made on the basis of an individual choice of or decision by the consumer

The above definition does not exist in the CCRs and I don't know quite know why but my understanding is that the goods were not pre-fabricated goods and so the exemption applies from the outset and since the Directive doesn't call out any conditions subsequent to the conclusion of a contract, the consumer does not have a right to withdraw. 

But the example you cited earlier of printing non-customer names (i.e. from a standard range) on football shirts would also fail that pre-fabricated test but they're deemed by the UK government guidance not to be excluded from the right to cancel?  It's often commented on here (not that this makes it legally correct of course!) that goods made to order aren't inherently excluded simply by virtue of that fact.

A_Geordie said:
Anyway, I digress and I believe I may have found the answer to the OP's issue, which lies in the guidance published by the Director-General for Justice. Link here: https://commission.europa.eu/system/files/2019-07/crd_guidance_en_0_updated_0.pdf

See page 54: 

... This exception should cover, for example:

• goods, for which the consumer has requested specific personalised features, such as ... 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

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 make up the goods by picking from the standard (pre-set) options provided by the trader, such as colour or additional equipment in a car, or makes up a set of furniture on the basis of standard elements, it should not be possible to speak of either 'specification' or 'personalisation' in the narrow sense of this provision.

Now you may disagree with me but I would say that the above is not too dissimilar to the comparison I made between Dell and PC specialists. I'm still currently on the side of the fence that a customer-specific built to order PC is not part of a general offering to the public. Naturally, the OP has to use a drop down menu to select the components because that's how the PC specialist set up the way the order is submitted, but there's still an argument to say that once the order is placed, the PC specialist will have to procure the components individually in order to meet the customer's specifications, as opposed to taking a PC off the shelf. There may also be some force in arguing that built to order PCs typically take longer to be delivered  due to the fact that they are customised for each individual customer specifications.

Perhaps I am wrong entirely and the interpretation is that for something to be 'procured' it must be something obtained that is not physically in the possession of the trader's inventory, though I think that could create unintended consequences especially where the manufacturer is also the contracting party to the customer.  

I'm not familiar enough with the specifics of how OP's retailer offers its PCs but was envisaging assembly from components that it would typically stock (i.e. aligned with the quoted reference to "parts offered from a standard range" in the UK government guidance), but if it's having to buy in parts specially then I agree that doing so is more likely to be legitimately characterised as personalising.

MyRealNameToo

Grumpy_chap said:

If you are selecting from drop down menus, then that is not bespoke / customisation.

According to people here, I would caveat. 

I have certainly seen professional legal advice from a decent law firm that drop downs with a "made to order" back end is customised and therefore carved out. 

the_lunatic_is_in_my_head

MyRealNameToo said:

Grumpy_chap said:

If you are selecting from drop down menus, then that is not bespoke / customisation.

According to people here, I would caveat. 

I have certainly seen professional legal advice from a decent law firm that drop downs with a "made to order" back end is customised and therefore carved out. 

More according to the EU guidance on the matter  

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

‘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.

the_lunatic_is_in_my_head

A_Geordie said:

This exception should cover, for example:goods, for which the consumer has requested specific personalised features, such as ... 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

 I'm still currently on the side of the fence that a customer-specific built to order PC is not part of a general offering to the public. 

I read that as, the part(s) had to be individually procured for that particular order and [the part(s)] was not part of the trader's general offer to the public, rather than referring to the finished product. 

If a trader offers drop down menus for a hard drive up to say 1TB but the customer says they want a 5TB that is something the trader has to go out of that way to order and isn't something that forms a part of their general offer to the public. 

A_Geordie

eskbanker said:

But the example you cited earlier of printing non-customer names (i.e. from a standard range) on football shirts would also fail that pre-fabricated test but they're deemed by the UK government guidance not to be excluded from the right to cancel?  It's often commented on here (not that this makes it legally correct of course!) that goods made to order aren't inherently excluded simply by virtue of that fact.

Well I think the point the UK guidance is making is that consumers are likely to purchase shirts with player names that are in the first team, which is something shops would already be selling, so they are not unique and they're certainly not an individual choice made by the consumer. 

I'm not familiar enough with the specifics of how OP's retailer offers its PCs but was envisaging assembly from components that it would typically stock (i.e. aligned with the quoted reference to "parts offered from a standard range" in the UK government guidance), but if it's having to buy in parts specially then I agree that doing so is more likely to be legitimately characterised as personalising.

I'm not suggesting you're wrong because each case will be fact specific but I think there's always going to be a base level of pre-fabrication, whether that's a roll of fabric, timber, cars, wardrobes etc. but the guidance is steering us towards thinking that the the consumer's right to withdraw is no longer available when the goods are non-standard offerings and unique to the consumer. 

Building a PC from scratch based on the consumer's choice of individualised components is more than likely going to be a unique product specific to that consumer and is unlikely to be a standard offering by that trader. I don't put it in the same bucket as the likes of Dell, Microsoft, Ford, Mercedes where the goods are already pre-built but you have limited options to swap components/colours that are pre-determined by the trader. 

I think I've said this before in previous threads, but the more granular and level of control the consumer has over the customisation of the goods, the higher chance it will be considered bespoke and the right to withdraw will be lost.