Distance Selling

Selling from afar

Traditionally under English law, once a contract was concluded, the parties could only get out of it by mutual agreement, although breach by one party might lead the other to be excused performance of his obligations or events might "frustrate" the contract .

With the advent of high- pressure sales techniques in certain areas of commercial activities, statute intervened to protect the "weak" consumer against the "persistent" salesman. Usually a "cooling- off period was granted - in consumer credit agreements, contracts concluded away from business premises, mail order transactions, certain life assurance and financial investments.

Europe has given us a new set of rules, being the Consumer Protection (Distance Selling) Regulations 2000, which apply to "distance contracts" i.e. contracts concluded between a business seller and a Buyer ("B2C Contract") without a face-to-face meeting e.g. sales from websites, even sales by mail order, telephone and fax.

The Regulations require certain information to be provided by the Seller to the Buyer, who is also given a "cooling off period" in which to cancel the contract. On cancellation, the Seller must return any money paid.

If the contract is one for the sale of

Goods, the Buyer must return them (or rather make them available for collection)

Services, it matters not whether the Seller has started to perform the services

Certain types of contract are excluded from

The Regulations altogether - those concerning land deals, automated machines, auctions, financial services (they have their own regime).

Most of the Regulations - those concerning perishables and certain travel, transport and leisure contracts.

The right to cancel - where

The price is dependent on uncontrollable fluctuations in the financial market
The goods are made to the consumer's specifications or personalized or by their nature, cannot be returned or are liable to deteriorate or expire rapidly.
The Buyer has un-sealed audio or video recordings or computer software.
Newspapers, periodicals, magazines, gaming, betting, or lottery services are concerned.

Cooling off period

The cooling off period starts with the date of the contract ("the Contract Date") and ends on a date ("the End Date"), in the case of

Goods, 7 working days from the day after delivery to the Buyer
Services, 7 working days from the day after the Contract Date

This is, however, only if certain information is given to the Buyer before the Contract Date. If not the cooling off period is extended to the date 7 working days after the information is so given (with a long stop of 3 months from the End Date).

What then is this important information to be provided?

The identity of the Seller and, if payment is in advance, the supplier's address
A description of the main characteristics of the goods or services
The price of the goods or services including all taxes
Delivery costs where appropriate
The arrangements for payment, delivery or performance
The existence of a right of cancellation, if any
Information about the conditions and procedures for exercising the right to cancel, including any requirement to return goods on cancellation and the cost of such return
The Seller's business address for complaints
Information about any after-sales services and guarantees
Cancellation conditions where the contract is of an unspecified duration or a duration exceeding one year

The information has to be given in writing or in "some other durable medium." Posting it on the website is not sufficient. Sending an email may be, but neither the Regulations (nor the European Directive from which they were derived) are specific on the point.

Substitute Goods

If the Seller wishes to have the right to substitute goods in the event that the ones requested are not available, he must notify the Buyer in advance both of this and his obligation to pay the cost of return if the Buyer cancels.

Cancellation

Notice must be in writing or in "some other durable medium".

Refund and Return

The Seller must (within 30 days) return the Buyer's money paid less any "legitimate" expenses of recovering the goods i.e. not where the Buyer has rejected the goods under a contract term, the "return" term was unfair, or the goods were substitutes. The Buyer must look after the goods and make them available for collection.

Performance

The Seller must perform the contract within 30 days or the contract is void he must refund money within 30 days after the period for performance.

Payment Cards

These include credit, debit, and charge, store cards. The Buyer can cancel, if his card has been fraudulently used and he gets a refund of all money from the card issuer, no longer all but £50 or nothing, if he has been grossly negligent.

Criminality

There were proposals to make failure by Sellers to comply with the Regulations, a criminal offence and this is a possibility for the future.

There is still the problem of suing or enforcing judgments in another Member State.