CONSUMER RIGHTS


HOW DOES THE SOURCING AND SUPPLY OF AN ENGINE FOR A CUSTOMER IMPACT ON DISTANCE SELLING AND ANY RIGHT TO A 14-DAY CANCELLATION PERIOD?


T Wales.


Whether it be a whole car or just an engine that is being delivered to a consumer, you must consider whether you have to notify consumers - and to provide a formal notice - of a cancellation period of 14 days.


During the Coronavirus outbreak, a number of dealers switched their entire operations to remote sales and we wrote several Legal Updates on the provision of cancellation notices in those circumstances.


The general criteria for providing a cancellation notice is:


1 - The buyer must be a consumer and not purchasing for their trade or business. 2 - There must be no face-to-face communication on the sellers’ premises before the goods are delivered to the consumer and paid for in full. 3 - There must be an organised distance selling scheme in place*.


4 - The goods must not be bespoke or materially changed to the individual needs of the consumer. *Where a car dealer is routinely or regularly offering to deliver cars for vehicles ordered over the internet, then clearly it is going to be an “organised distance selling scheme” and a cancellation period needs to be given. However, as the impact of Covid-19 and lockdowns have


he Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 are the same in Scotland as in England and


eased, car dealers may not feel the need - or have the demand - to offer distance selling. Where distance sales become the “exception” rather than the general rule of trading then you need to make it clear to any prospective customer who demands delivery, having not visited your premises, that the delivery is a “one-off” and you do not run an organised distance selling scheme. Here, the consumer will not have any right to cancel. Inform the prospective buyer not to proceed, unless they specifically agree in writing that they cannot cancel the deal. Of course, you cannot say this and still have a website advertising delivery! It really must be a “one-off” delivery arrangement.


As regard to the sale and/or fitting of an engine - tread carefully! Scenario 1 - You receive a call from a private individual to say that their engine has blown up and the car is on their driveway requiring replacement. You are asked to source an alternative and to deliver to them for them to fit themselves. Do not do it! For, if you do, you will need to give that consumer a cancellation notice for the engine, which they can use to cancel the contract. They would get their money back from you, consequent of the cancellation but, as you are a trader, you have no reciprocal right of cancellation with your supplier. This would leave you out of pocket and with an unwanted engine. Scenario 2 - You receive a call to say that a recovery truck can bring to you a car with a blown


engine - could you please source an engine AND fit it. You agree. Now, if you are asked to “supply and fit” an engine, this can be considered a service. This is because the greater part of the contract is the service of fitting and not the buying of the engine. For services to commence without prior face to face contact, you should refuse to do anything and give a cancellation notice online at that point. However, you can say to the consumer that if they want the supply and fit contract to commence before the expiration of the 14-day period then they can expressly waive that cancellation right. Once they do that, you are free to go.


This only applies for service provision and not for selling goods alone.


And also bear in mind - in either scenario - ideally you should always get the consumer to pay for the engine (or any major part) themselves directly from a supplier. Simply because if the engine is defective then it is for the consumer to take up with the supplier. But if you pay the supplier for the engine and it turns out to be defective, you will have to fight with the supplier, which is never ideal.


For more information: 01480 455500 or www.lawgistics.co.uk


22 WWW.SMTA.CO.UK


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