Following the mad rush for Christmas present spending and hot on the heels of Black Friday & Cyber Monday, Corporate Solicitor Ayesha Chandegra explains everything you need to know about your consumer rights and how to enforce them in her FAQ guide.
1. Will the Consumer Rights Act 2015 apply to all of my contracts?
As its name suggests the Act only applies to contracts that you enter into as a trader with a consumer. It does not apply to contracts with other businesses which are still governed by existing laws (e.g. the Sale of Goods Act and Supply of Goods and Services Act), nor does it apply to consumer to business contracts or contracts between consumers.
2. Who is a trader/what is a consumer?
Traders and consumers are specifically defined in the Act.
A trader is: “a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf”.
A consumer is: “an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession”. If the individual is acting in both a personal and business capacity, then the individual is presumed to be a consumer and it is the trader’s responsibility to prove otherwise if there is any doubt about the status of the person he contracted with.
3. What is a mixed contract?
The Act applies to contracts for the provision of goods and the supply of services, as well as introducing a new concept covering digital content. Digital content means data that is produced and supplied in digital form.
A mixed contract is a contract that incorporates more than one of these concepts. For example, the sale of a CD or DVD will include goods (i.e. the physical disc) and digital content (e.g. the software, music or film contained on it), while the sale of patio doors may include goods (i.e. the doors) and services (i.e. the installation of the doors at the consumer’s home).
4. Can the consumer change their mind after the contract has been made?
The Act deals with situations where the goods, services or digital content are faulty or otherwise non-conforming. You are under no legal obligation to offer a refund to a consumer who simply changes their mind, although many traders do have a published returns policy for commercial reasons.
An exception to this rule is where you have sold goods or services off-premises (for example where a contract is concluded at the consumer’s home) or at a distance (such as contracts made by telephone or over the internet), in these cases the consumer is entitled to a 14-day cooling off period in which they can change their mind. If, however, the consumer has asked you to start providing services within the cooling off period they lose this right.
5. What can a consumer expect under their contract?
The Act gives consumers certain statutory rights. These include:-
- Goods: that the goods be of satisfactory quality, fit for purpose, as described and matching any samples or models previously seen.
- Services: that the services be provided with reasonable skill and care, and performed in line with information provided.
- Digital content: that the digital content is of satisfactory quality, fit for purpose and as described.
6. Can I give the consumer more terms after the contract has been made?
As a general rule, no. Traders must provide consumers with all terms of the contract at the time the contract is entered into and, in some cases, you must give or make available specific pre-contract information, which is governed by separate legislation. It is therefore important to deal with matters upfront, particularly if there are any specific circumstances. That said, you can change the terms of a contract if the consumer agrees.
7. Can the consumer always make a claim?
The Act is meant to protect consumers, but this does not mean that a consumer will always have a right to bring a claim. It may be, for example, that a fault has arisen because the consumer has misused the product, although this may be difficult to prove and, what’s more, the burden of proving whether a fault has been caused by misuse or not can switch between you and the consumer.
Take, for example, the sale of an ex-display TV. If you told the consumer about obvious any defects before they agreed to buy the set, this will vary the standard position regarding quality and description, so that they cannot argue at a later stage that the item was not of satisfactory quality. It is also worth bearing in mind that there are various time limits imposed on when a consumer can bring a claim, although many of these are dealt under separate legislation.
8. If there is a trader and a manufacturer, who is ultimately responsible?
The consumer contracts with, and has statutory rights against, you as a trader. It is not unusual for third party manufacturers to offer guarantees, but these are in addition to the rights the consumer has against you and it is the consumer’s choice who to bring the matter to. In any event, neither of you can direct the consumer to the other. However, if a consumer does look to pursue a matter against you, you may well have separate rights against the manufacturer or whoever you bought the faulty product from in the first place to fall back on.
9. How must a refund be made? Can I choose to refund by store credit?
If you decide that a consumer is entitled to money back, then it must be provided in the same manner used for the original purpose, unless the consumer agrees otherwise. If, for example, the consumer paid in cash, then the consumer is entitled to be refunded in cash. You cannot require the consumer to accept store credit, unless the consumer decides to accept store credit, without being pressured into accepting it, or is not legally entitled to a refund (e.g. a refund under a returns policy).
10. What evidence is required for a consumer to claim their rights?
In general consumers are entitled to claim their statutory rights, although you can require the consumer to provide proof of purchase in order to establish that such rights are being properly claimed. This could be the production of an original receipt, but a bank or credit card statement or some other form of evidence may suffice. By way of an example, if you are dealing with faulty goods, then you cannot demand that the consumer produces their original receipt if they are legally entitled to a refund, but you can require the consumer to produce an original receipt if they are only entitled to a refund under a voluntary returns policy that states this as a condition of return.
Download our helpful flowchart that gives an overview of the remedies available under the Consumer Rights Act 2015: Click here to download SA Law's Consumer Rights Act 2015 Remedies Flowchart Download