Many of us sell to consumers.
The detailed terms on which we sell need to be captured in our terms and conditions - and if you need to review yours, or put some in place for the first time, Farillio's handy template selector will rapidly pin-point the right ones for you (because there are lots of different variations and ending up with the wrong set is not good news!).
Those terms must take account of the rights that the UK law gives to consumers. And these are mandatory. You cannot lawfully avoid them in your consumer-facing trading activities.
The good news is that all Farillio's templates contain the drafting options that you need to consider and lots of guidance on consumer rights and how to handle them.
They also cover what happens if the consumer's not happy with what you've supplied them.
So you should always use your terms and conditions as your starting point.
Wilkes' Simon Thomas is one of our highly experienced 'go-to's' when it comes to handling complaints about trading activities, and helping, where possible, to prevent them turning into full-blown disputes.
So, we asked Simon to help us condense this rather detailed area of law into something straightforward and pragmatic that you can use as a quick reference accompaniment to your terms and conditions.
This guide sets out what we learned from him.
What are the main consumer rights?
Consumers have key rights in relation to goods, to services and to digital content.
These rights differ quite considerably from the rights that business customers have - and they're a lot more exacting.
This is why it's so important to ensure that your terms and conditions (or other sales documents) contain precisely the right wording to reflect your business activities and the legal obligations that attach to them.
Use Farillio's handy template selector to make sure you have the right set for your needs.
Meanwhile, here's a quick overview of the rights that relate to each of the items that you could be selling:
Supply of goods
When it comes to the supply of goods, whether those products are physical or digital, consumers have three main rights that are legally and permanently implied into all supply of goods terms and conditions/contracts.
You cannot agree that they will not apply to any terms that you put in place with consumers.
These rights entitle them to goods that must be:
consistent with what was described in any sales information provided to consumers ahead of their decision to purchase the goods
This also means that the goods should match any sample or model that the consumer was shown.
of satisfactory quality, and
fit for purpose.
Consistent with what was described
This means quite simply that what you have described to the consumer, whether on labels, adverts, in brochures or verbally, must be consistent with what the consumer receives from you.
You'll see that in Farillio's templates, wording is included to help keep this obligation to reasonable levels. For example, in clause 5 (about the goods) of the template terms and conditions for sale of goods from a premises to consumers, the wording points out that
"Any descriptions or images of the goods, and the packaging in which they are provided, which are set out in our catalogues or on our website, are for illustration only. While we endeavour to be as accurate and consistent as possible, the goods may be slightly different to those descriptions or images."
The clause also contains optional drafting relating to handmade or personalised goods and those that are manufactured based on measurements provided by the consumer.
So while you must be responsible about ensuring that consumers get what they are reasonably expecting, you do have a bit of latitude where, for example, colours or packaging might have a slight variation from what is seen on display or in a brochure.
Clause 6 of the same template contains drafting to cover what happens if changes need to be made to goods too. And it guides you through explaining what happens if it's the consumer who wants those changes, or it you need to make them.
'Of satisfactory quality....'
The quality of goods is 'satisfactory' if those goods meet the standard of quality that a reasonable person would consider satisfactory.
This is a broad and not overly prescriptive assessment, which can take into account all of the relevant circumstances relating to your sale to this consumer.
For example, the price that is paid may be relevant - a reflection of the saying that ‘you get what you pay for’. Meaning that if the goods are priced unusually cheaply, a reasonable person would likely assume that they are cheap and therefore potentially not high quality.
How the goods are described will also be relevant.
For example, a description of goods as 'premium' or 'luxury', would typically lead a reasonable person to conclude that the goods are well-made and better than standard or economy versions.
'Fit for purpose'
Fitness for purpose will frequently overlap with the need for goods to be of satisfactory quality.
This means that:
the goods can be used everyday, for the purposes they are described and intended
as well as
any specific additional purpose for which the seller told you they would be suitable
e.g. if a salesperson tells you that a printer will be compatible with your laptop, or that a particular paint will be appropriate to paint a radiator or a bathroom.
a consumer tells you, as the trader (either directly or by implication) of a particular purpose for which they are buying the goods and
you - or your sales representative - confirm that the goods are appropriate for that use as well, and
the consumer buys them based on that assurance,
the goods must be fit for that specified purpose, even if it isn't one for which those goods are normally supplied.
The only exception to this rule is if a defect or issue was specifically pointed out to the consumer before they ordered or bought the goods.
they saw the goods beforehand and
they had the chance to notice (but didn’t) that they were not satisfactory or fit for purpose, and
this would have been reasonably obvious to most consumers,
then the consumer would have a hard time arguing that the goods were not acceptable to them because they're unfit for purpose or of unsatisfactory quality.
By contrast, however, if defects or issues were obscured from the consumer or would not have been obvious (i.e. they couldn’t open the packaging or see through it, before they bought the product), then the consumer would have pretty good grounds to argue that they're entitled to reject the goods.
Consumers have other rights if you breach those core rights. These include the rights to:
receive certain information before the contract is concluded/purchase is made. This will include information sch as what you need from the consumer before you can provide the goods and how the consumer can make a complaint.
a proper standard of installation, if installation is included in the sale of the goods
the rights to cooling off periods and cancellation rights where goods have been sold to them at a distance, e.g. by catalogue or online, since they have not had opportunity to inspect those goods first.
The length of the cooling off and cancellation right period differ a little according to the basis on which the goods were sold, but the typical period is 14 days from receipt of the goods.
(All Farillio's templates set out the right time-frames in each case.)
certain additional rights if you're selling them digital content, (see more on digital content below)
rely on the fact that:
- you have the right to sell them the goods in the first place and that
- this sale will transfer absolute ownership of those goods to the consumer (nobody else can have any claim to ownership of them)
cancel the contract where, for example:
you've erroneously described the goods and it's not what they wanted
you need to make a major change to the goods or to suspend supply, and the consumer doesn't want to bear the impact of this
events beyond your control are preventing you from being able to supply the goods (and those reasons are not the fault of the consumer either), or of course,
you've breached the contract.
For more detail on a consumer's rights where one or more of the core rights have been breached by you, as their supplier, see our section on 'what can consumers do?' below.
Supply of services
Equivalent legal rules apply to the supply of services to consumers and they can not be avoided when you're selling to consumers.
This means services must be:
Consumers have the right to expect that services described to them during the sale process will in fact be performed as they were described.
If they were told by the supplier of those services that the services would be suitable for the consumer's requirements, again, they have the right to rely on that reassurance and to seek a remedy if that turns out not to be the case.
'carried out with reasonable care and skill'
By law, services must be provided to consumers with 'reasonable skill and care'.
'completed within a reasonable time-frame'
The services must also be performed on a timely basis.
Some contracts will additionally make the timely performance of the services a fundamental term of the contract, by specifying deadlines and expressing them to be 'of the essence'.
This means that not meeting the deadlines, will be a breach of contract by the supplier, bringing into play a number of remedies, including, usually, the right for the customer to terminate the contract and demand compensation.
The law does not imply a 'time of the essence' obligation into contracts that are silent on the timing within which services must be performed. It simply requires them to be performed within a reasonable time-frame.
What does ‘reasonable care and skill’ mean?
This means that any person performing the services on behalf of the supplier must be reasonably competent when judged against the standard of other professionals or qualified experts or tradespeople who offer the same type of services.
Beyond that, the law deliberately doesn’t get too specific.
This is often more a question of fact (what would the ordinary professional/business person judge to be the appropriate standard of care and skill) than what is written in the law.
But if your customer says they were told something that was not true, (i.e. they're claiming they were mis-sold the services), there are some further detailed legal rules about what you're liable for. In either case, it would be wise to take expert advice.
Consumers have other rights if you breach this core right. This includes the rights to:
receive certain information before the contract is concluded/purchase is made. This will include information such as what you need from the consumer before you can provide the services and how the consumer can make a complaint.
the rights to cooling off periods and cancellation rights where services have been sold to them at a distance, e.g. by telesales or online
The length of the cooling off and cancellation right periods differ a little according to the basis on which the goods were sold, but the typical period is 14 days from receipt of the goods.
All Farillio's templates set out the right time-frames in each case.
rely on the fact that:
- you have the right to sell them the services in the first place.
Want to access this guide?
Already have a Farillio account? SIGN IN
Get unlimited access to 100s of legal resources by signing up to Farillio today.
- Manage your legal documents online
- Well written legal templates by our partners
- Guides to help you understand law
- Legal help available every step of the way