English consumer protection law aims to give consumers rights and remedies in respect of what they buy to create a level playing field between businesses and consumers. It is important to make sure that you are aware of the nature of your relationship with a consumer so that you begin your relationship with the consumer in a way which is compliant with consumer protection law.
Am I selling to a consumer?
A good starting point is to determine whether you are selling to a consumer under consumer protection law.
Generally, a consumer is an individual acting for purposes which are wholly or mainly outside their trade, business, craft or profession. A company is not usually deemed to be a consumer, but a sole trader or partner of a business can be a consumer.
Am I a trader?
The question as to whether you are a trader is linked to whether or not there is a consumer in the sense that if a purpose is not outside an individual’s trade, business, craft or profession then it must be within it, so the person selling is acting as a trader in such circumstances.
What do I need to consider before the consumer contract is in place?
There are terms that are common in business to business contracts which should not be used in consumer contracts. For instance, many terms which would be permissible in a business to business contract risk being unenforceable against a consumer due to English consumer protection laws. Consumer contracts should always be drafted in plain English, avoiding any legal jargon. Therefore, if you already have terms and conditions for your business to business contracts, these should be reviewed for suitability for use with consumers.
If you are going to be acting as a trader and selling goods to consumers, you will need to make sure that you put the right information both in the consumer contract itself and in the course of dealings. This is because, in addition to usual business disclosure requirements, there are certain information provision obligations placed on traders when dealing with consumers which dictate not only the information that has to be provided, but also the timing for provision of that information and also how it has to be provided. These requirements can differ depending on the method by which the goods are sold to consumers – for example, at the trader’s business premises or via distance means (e.g. a website).
Care should also be taken to ensure that any advertising and promotional materials relating to the goods you are selling are compliant with applicable laws.
How do I get the consumer to agree to my terms and conditions?
You will need to supply the terms and conditions to the consumer before the time they place an order or at the time that they are placing an order. Consider putting them on the back of all contractual documents, whether these documents are brochures, delivery notes, order forms or quotes.
But, it is important to note that ensuring your terms are properly incorporated is crucial to the arrangement because your terms and conditions have no value if they are not actually applicable to your relationship with the customer.
Simply providing the terms and conditions on the back of an order form may not be enough to make sure that the terms and conditions are binding against the consumer. You will need to make sure that they have actually seen them and that they understand them. It is necessary in many circumstances to draw the consumer’s attention to unusual or particularly onerous terms in the document so that they are aware of them.
Getting an actual signed contract from the customer is often the most protective way of ensuring the terms are incorporated but this can often be impractical and overly burdensome. Many businesses require a customer to tick a box to confirm they have read the terms and conditions. Whilst this can be useful to ensuring the terms are incorporated, it remains important to take necessary steps to ensure that the customer has read and understood them. It is recommended by the Competition and Markets Authority that you should include wording to instruct the consumer to read the terms carefully before signing that they have read them.
As well as making sure the consumer has read your terms and conditions it is important to make sure that they understand them so that they are aware of and understand their rights under a contract with you. Consider welcoming them to ask you any questions which they may have and / or seek legal advice before agreeing to the terms and conditions. Include contact addresses and email addresses so that they can easily get in touch with you with any questions they may have.
How can we help with consumer protection law?
If you are looking to start selling to consumers or if you are already selling to consumers and would like to check that your existing policies, procedures and documentation are compliant with consumer laws, please contact our experienced commercial solicitors at Herrington Carmichael.
Please contact our commercial team.
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