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the consumer claims were taken into consideration when entering into the agreement with the trader.
Limitations of liability are dealt with in another part of the Act
and there are certain liabilities that cannot be restricted in terms of value. This will not be discussed here as this would be an insurance issue. You should have relevant insurance cover if you are acting for consumers as the insurance will take into account the liabilities under the Act. The obligation that requires careful consideration if you are
acting for consumers is the one described in point 4 above. Basically, what this obligation means is that you have to be very aware of what you are holding out on your website and in any promotional brochures you issue to consumers and any pre-contractual correspondence or conversations with them. This is because the consumer could choose to rely on any of this when accepting the terms and price you offer, and if so then what the consumer relies on becomes an enforceable and binding contract term.
The BIFA Terms provide at clause 25 that unless there is a special arrangement made in writing by an authorised officer of the forwarder, the company accepts no liability for failure to meet agreed departure or arrival dates of the goods. Therefore, there is no binding agreement if these requirements are not met and otherwise the forwarder is required to deliver within a reasonable time, which is apparent from clause 23 and clause 26(B). Therefore, there is no effective difference here between the Act and the BIFA Terms – the forwarder has to deliver within a reasonable time and reasonableness in both cases is a matter of fact.
4. The final statutory right is the main area of concern as it provides that every service contract is to be treated as including, as a term, anything said or written to the consumer by, or on behalf of, the trader if it is taken into account by the consumer when deciding whether to enter into the contract or is taken into account by the consumer when making any decision about the service required. There are certain quite limited qualifications to this requirement that shall not be expanded on in this article. There is nothing at all similar to this in the BIFA Terms. The BIFA Terms do not prevent forwarders from entering into additional terms as there is no wording in the terms that prevent this. Therefore, common law would apply (freedom of contract) and that is narrower in terms of English common law. In order to have binding terms, they have to be agreed by the parties at the time the contract is formed and there has to be some form of consideration, which is usually payment. Therefore, if there is no agreement there is no term. However, the Act here is allowing a consumer the opportunity to give evidence that if he or she took anything said or written by the business (the forwarder) into account before the contract is formed then that would be regarded as a term, even though the consumer has not stated an intention to treat it as a term. It is a subjective test of what
August 2019
Website considerations It is important to consider making it clear to users of your website that, in terms of consumer contracts, only certain parts of the website will apply. You should direct users to those parts of the website in a clear and unambiguous way and then make sure that nothing you say in those parts is anything more than what you would expect to agree to, and be bound by, in a contract. You need to ensure those with contracting authority in your
businesses are aware of this position and ensure they make no comments in writing or email that are outside the terms of offer which could be held as binding before the contract is made, which is effectively when the offer of terms and price is agreed by the customer. Brochures and websites often contain what are known as
‘advertising puffs’– for instance “Persil washes whiter than white” – and they are not considered to be enforceable because they are clearly overblown statements that cannot be reality. The point here is that anything you say that the user as a consumer relies on (and may be enforced) in contracting with you will be a contract term. In the circumstances, you need to think about reviewing
brochures and websites and procedures in the business for entering into contracts to try to limit what is said or written outside the actual quotation subject to your BIFA Terms to ensure that the customer/consumer cannot contend reliance on anything that you have not actually accepted as being part of the contract terms. Consider what your website projects and make it clear if you
may be subcontracting and that delays may occur if vehicles are not available. Otherwise it may project to the consumer the implication that you will be carrying the items yourself and will have control over availability of vehicles – for example, by showing photos of unbranded planes or trucks or ships, which a consumer may assume to be owned or operated by you. Remember that the test is subjective. So as long as the
consumer says he or she relied on something written or said pre- contract when entering into the contract, the court will uphold that as part of the contract unless the court does not believe the evidence of the consumer to be credible, which is unlikely. BIFA would like to thank Kay Pysden of Pysdens Solicitors for contributing this article
It is important to consider making it clear to users of your website that, in terms of consumer contracts, only certain parts of the website will apply
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