Custom/Bespoke and Drops Downs

A_Geordie

the_lunatic_is_in_my_head said:

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. 

I get what you're saying but in a situation like this, PC speciliasts typically offer custom-built PCs enabling you to select all components that are currently available on the market. The guidance is steering towards the uniqueness of the goods based on the consumer's requirements and I think that's the context that needs to be taken into account when looking at the wider picture. The drop down options for components in this type of scenario I think are more for convenience to the consumer rather than something that is pre-determined by the trader giving the examples in my last post, but that's just my opinion. Otherwise, I suppose the trader could just remove the drop down menus and then ask the consumer to write the specifications themselves in a blank text box so that the PC can be considered bespoke. But I don't see much of a difference between the two for this specific situation. 

If we are talking about procuring something in the sense that it must be obtained from a third party that is not the trader in order for the goods to be classified as unique and bespoke, then I think that is an extremely narrow interpretation, and I'm not 100% sure that aligns with previous EU case law on this topic. 

However, you may be right but I guess the only way to find out is for someone to take it to court and get a clearer answer.

the_lunatic_is_in_my_head

A_Geordie said:

If we are talking about procuring something in the sense that it must be obtained from a third party that is not the trader in order for the goods to be classified as unique and bespoke, then I think that is an extremely narrow interpretation, and I'm not 100% sure that aligns with previous EU case law on this topic. 

Without meaning to be pedantic, wouldn't everything from a retailer be obtained via a third party (unless the retailer is also the manufacturer)?

Regardless, original point clarified below. 

A_Geordie said:

I get what you're saying but in a situation like this, PC speciliasts typically offer custom-built PCs enabling you to select all components that are currently available on the market. The guidance is steering towards the uniqueness of the goods based on the consumer's requirements and I think that's the context that needs to be taken into account when looking at the wider picture. The drop down options for components in this type of scenario I think are more for convenience to the consumer rather than something that is pre-determined by the trader giving the examples in my last post, but that's just my opinion. Otherwise, I suppose the trader could just remove the drop down menus and then ask the consumer to write the specifications themselves in a blank text box so that the PC can be considered bespoke. But I don't see much of a difference between the two for this specific situation. 

I do agree there is a lot of ambiguity here and also a lot of variables. 

RE text box, yes I think if you are selling t-shirts with "print your name here" it is better to ask the customer to enter their name than to have options for "Dave" or "Mary", not just because it's then personalised but also because it's less restrictive for the customer's choice.

I guess with PCs the average consumer is a little less knowledgeable with regards to what they what, even if they understand the specs they may not be aware of the difference between brands or such, and so the drop down options make sense but they do also reduce choice. 
 
If you take that back to the first paragraph above, if Mr Custom PC LTD gets their parts from a supplier (or even 10 suppliers) that sells pretty much everything, that is to my my mind part of the trader's general offering to the public regardless of it's significant scope. If however a customer requests something that those 1-10 suppliers don't carry and the trader then has to go off and hunt for it that then isn't a general offering. 

With that in mind a retailer is going to only offer drop down menus options for items that are indeed their general offerings as they have an established, steady and reliable supply chain in place. No one is going to offer options for parts that don't form part of that supply chain and it is those one off parts that are creating a truly unique final product where the customer has had unrestricted choice.  
 
That of course is in my view, for what it may, or may not, be worth. 

Ergates

the_lunatic_is_in_my_head said:

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?

I think the point made there is before acceptance you may withdraw your offer but once accepted and a contract formed the limit of application is inherent in the contract, i.e there is no right to cancel simply because they haven’t started to make something yet.

(Apologies in advance if I’m getting the wrong end of the stick there).

To add to the topic in general, the EU guidance talks of creating a unique item, in most cases a dropdown menu type of set up isn’t unique, whether it could be argued complex options is I don’t think it’s yet been decided through any case law. 

I don't think the method of selection can be the deciding factor.

For instance, with the football shirt example.  It would be entirely feasible (if a little unusual) that, rather than a free-text field with a 15 character limit, they presented 15 drop down boxes that allowed you to select from the available characters.

That the website decided to use drop downs doesn't mean it's not bespoke - you're still printing your own name on the shirt.

I'd argue then, there must be *some* point where the number of (viable) selectable options makes something bespoke.   The question is:  where is that point?

the_lunatic_is_in_my_head

Ergates said:

the_lunatic_is_in_my_head said:

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?

I think the point made there is before acceptance you may withdraw your offer but once accepted and a contract formed the limit of application is inherent in the contract, i.e there is no right to cancel simply because they haven’t started to make something yet.

(Apologies in advance if I’m getting the wrong end of the stick there).

To add to the topic in general, the EU guidance talks of creating a unique item, in most cases a dropdown menu type of set up isn’t unique, whether it could be argued complex options is I don’t think it’s yet been decided through any case law. 

I don't think the method of selection can be the deciding factor.

For instance, with the football shirt example.  It would be entirely feasible (if a little unusual) that, rather than a free-text field with a 15 character limit, they presented 15 drop down boxes that allowed you to select from the available characters.

That the website decided to use drop downs doesn't mean it's not bespoke - you're still printing your own name on the shirt.

I'd argue then, there must be *some* point where the number of (viable) selectable options makes something bespoke.   The question is:  where is that point?

The argument from my point of view is that the drop down options with names would be those the trader expects to sell, thus they are not unique. 

They aren't going to have a drop down menu with 4000 names as it would deter custom. 

Same with the PC really, too much choice puts customers off, the trader is going to tailor the options whilst considering what is popular, what is obtainable and presumably what is profitable, none of those aspects are really the customer's choice unless they happen to be what they wanted. 

I do agree there is probably a line, I guess the main question is does the retailer want to be the one to test it? 

LightFlare

Hopefully I will never have to find out - but really good to see a discussion around the subject.

For context - the 1st 4 selections give a theoretical number of combinations of ~ 360,000

40 cases, 15 CPU, 20 RAM and 30 GPU - so once Mobo, drives etc are included this will be well into the millions of possible combinations - however its only the specific selections that may be "besoke" - none of the individual parts are customised or specifically sourced

I have used this particular company several times and their feedback/customer support/returns is generally very good

mksysb

LightFlare said:

A_Geordie said:

Whilst I would agree with what has been said already, I would urge caution before you take the plunge. It sounds like you are ordering from a computer specialist website that allows you to effectively create your own PC from the CPU, motherboard, graphics card, memory right through to the PC case itself and unlike DELL, you can customise each component to suit your personal taste. Websites like Scan and PC Specialist are examples who offer this whole PC customisation. 

The UK guidance on whether something is bespoke gives an example of a football shirt saying that if it has a footballer's name printed on it, it would not be bespoke, but if it had your own name then it would be considered bespoke. 

Not very helpful in your situation but I think as a general starting point, you would need to consider the extent of the customisation and how easy is it for the retailer to sell those customised goods. Given that you are customising every single component that makes up the PC, I would be leaning towards this being classified as bespoke goods. The retailer could argue that selling the PC would require someone who wants to purchase a PC with the exact same specification that you have chosen meaning the pool of potential customers may be drastically reduced. 

However, I will caveat that by saying if you are selecting a combination of popular components (thinking CPU, Mobo, GFX) that easily sell out, along with a non-funky looking case, then perhaps one might argue that it no longer becomes bespoke goods - though the onus would be on you to prove that. 

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. 

very enlightening response - thanks.

The site I am using is set up in exactly this way - I have used them before and have done a lot of research/background to ensure my components are compatible.

It was just one of those moments whilst I was doing the order and having read posts on here around custom/bespoke that I found myself wondering how this would be perceived

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

Being a bit pedantic, but the CPU will have the thermal paste applying after attaching to the motherboard, but before the cooler is attached.

With the number of combinations I'm of the opinion it becomes bespoke.  The other option of the user just writing down what they would could end in chaos if the user isn't familiar with whats available.  Also while it could be taken apart again and bits reused, it'll cost the builder money, in the time taken to do it.  So just my opinion but I think it could be argued that the PC is bespoke,

Laptops on the other hand, are generally pre-built with only perhaps the memory being changed so again, in my opinion only, they could be classed not being bespoke.

MyRealNameToo

the_lunatic_is_in_my_head said:
I guess with PCs the average consumer is a little less knowledgeable with regards to what they what, even if they understand the specs they may not be aware of the difference between brands or such, and so the drop down options make sense but they do also reduce choice. 

The average customer doesnt go to a company that offers custom built machines. Instead they go to Dell etc where they are buying a preconfigured item where they may be able to make some small limited adjustments like the size of the HD or amount of RAM

Even if it's a free text field almost no vendor will have infinite possibilities, you could write in that you want a MSI GTX 780ti Lightning graphics card but you won't be getting one. General availability, availability from the merchants suppliers, compatibility with other selected components, cost, experiences etc may all limit what a vender may be willing to offer irrespective of how they capture the request. The text box just creates inefficiency as you go back and forth saying that the 12 Lightning cards were given away and only one has ever appeared on the secondhand market or that you can't put X into Y etc. 

A computer will ultimately be a number of off the shelf components assembled together. A vendor outside of Dell isnt going to be holding stock of Dell NVIDIA® RTX™ A800, 40 GB graphic cards at £20k each, they're probably willing to buy one for a consumer if they want it in a build but not if they can then return it given the chances of anyone else asking for one is basically going to be nil

A_Geordie

Well, this is the beauty of the debate and why this particular provision can create a real headache for interpretation. 

I think this quote from the OP hits the nail on the head: 

For context - the 1st 4 selections give a theoretical number of combinations of ~ 360,000

40 cases, 15 CPU, 20 RAM and 30 GPU - so once Mobo, drives etc are included this will be well into the millions of possible combinations - however its only the specific selections that may be "besoke" - none of the individual parts are customised or specifically sourced

Can anyone honestly say that the number of potential configurations which runs into the hundreds of thousands and if not millions depending on the number of selections made by the consumer, that it would be considered a non-unique and standard offering to the public? 

I agree there has to be a cut off and case law and guidance has already given some indication with regards to that. There will also be some borderline cases which may fall into one side or the other, but in this case, the sheer number of possibilities that a consumer could create would tell me that this would likely fall squarely in the bespoke/customised goods category.   

That said, it would be worth checking the retailer's T&C because if they're offering the same cancellation rights for custom-built PCs and making no differentiation between a custom-built PC over an off the shelf one, then there shouldn't be an issue for the OP. 

the_lunatic_is_in_my_head

MyRealNameToo said:

the_lunatic_is_in_my_head said:
I guess with PCs the average consumer is a little less knowledgeable with regards to what they what, even if they understand the specs they may not be aware of the difference between brands or such, and so the drop down options make sense but they do also reduce choice. 

The average customer doesnt go to a company that offers custom built machines. Instead they go to Dell etc where they are buying a preconfigured item where they may be able to make some small limited adjustments like the size of the HD or amount of RAM

Simply from a personal viewpoint, I don't agree with this, I've always purchased machines from Dell because I know as much about PCs as I do cars, however I do think you get a better machine for better value because you aren't paying for the branding and convenience Dell offer, with the ease of seeking advice online these days my next PC purchase will be with a such a company. 

A_Geordie said:

Can anyone honestly say that the number of potential configurations which runs into the hundreds of thousands and if not millions depending on the number of selections made by the consumer, that it would be considered a non-unique and standard offering to the public? 

As you say to be decided but I would assume the company is either massive and holds all that stock or more likely with distribution chains being so efficient these days they take a customer order and then order what they need, probably via an automated system, it is indeed a significant scope but it is also a very standard process to still fall within their general offering. 

Okell

Isn't the Mobel Kraft case a bit of a red herring here?

It seems to be authority for the proposition that a consumer can't "withdraw" from a contract for personalised goods or goods built to his specification from the moment the contract is formed, rather than saying anything about what built to his own specifications means.

Isn't the key issue the definition of "goods made to the consumer's specifications" in Article 2 of the Directive?

ie:  "... means non-prefabricated goods made on the basis of an individual choice of or decision by the consumer;"

It seems to me that the one word that is most important here is "non-prefabricated".

A prefabricated item is something which is assembled or put together from  "modules" which have already been manufactured or "fabricated" from more than one individual component.  (A component being the lowest and most discrete building block of the module)

So to me anything assembled by a retailer or a manufacturer which is made up of modules which have already been made up (either by the manufacturer or a third party) from more than one individual component is a prefabricated item.

By that argument the only goods that would ever be "non-prefabricated" are those where the modules to build what the consumer wants either do not exist or are not available, and the whole thing (including the modules) needs to be built from scratch - making the product unique to that consumer, until somebody else wants the same thing...

I would naively assume that any "modules" listed in a drop-down box already exist, are therefore pre-fabricated, and can therefore be cancelled.