Distance trading – contracts made when the
parties are not face to face
If the two parties to a contract, particularly one dealing with the sale of
goods, are not dealing with each other face to face, the buyer could be at a
disadvantage in not seeing the goods described by the seller. Two
businesses dealing in this way could be thought to have enough resources
to deal with this situation – it is in effect a business risk, and the buyer
should take precautions such as asking for a sample, or later rely on
remedies such as damages for breach of contract.
A consumer in a similar position is vulnerable and, following a European
directive, new statutory protection now exists. The Consumer Protection
(Distance Selling) Regulations 2000 are now in force, and although they
have not yet been widely used, and therefore will need some interpretation,
they represent a great step forward in updating the law of Contract to cover
modern methods of trading. The Regulations affect those who sell good or
services to consumers (not where a business deals with a business) and
apply where the sale takes place in one of the following ways:
- by telephone
- by fax
- by mail order or catalogue shopping
- over the internet
- using digital television services.
Under the Regulations the seller must give the consumer clear information
about the good or services offered before the sale takes place and must give
written confirmation after the sale. The consumer then has a ‘cooling off ’
period of seven working days. This means that if the consumer changes
their mind during that time, they can cancel the contract without it
amounting to a breach. The Regulations do not apply to some contracts,
including:
- the sale of land
- sales from a vending machine
- public pay telephones
- auction sales.
There are also partial exemptions, particularly in the areas of transport,
accommodation and catering, and the right to cancel does not apply to
some goods, such as perishable goods, newspapers, magazines, unsealed
audio or video recordings or computer software, personalised goods, goods
that by their nature cannot be returned.
Offer and acceptance 39