Assignment Sample on Consumer and Commercial Law
Introduction
The specific assignment has focused on analyzing a case study associated with the field of commercial and consumer law. In the case study, Andrew is observed to be dissatisfied with the purchase of text-processing software. The assignment includes an analysis of different scenarios related to breach of contract, the validity of Terms and Conditions and validity of Conditions of Use. Based on the analysis of the scenarios appropriate remedies or advice have been provided to Andrews to deal with the current situation.
Discussion
Analysis of the presence of a breach and identification of remedies for the text-processing software
A contract is regarded as a legally bound agreement between two parties (consumer and trader). A specific contract is developed when the consumer agrees to buy a product or service and the trader accepts the offer[1]. A suitable price and other respective conditions are decided between the two parties. In this manner, the parties get legally bound through the contract. From the case study, it is inferred that when Andrews had agreed to purchase the text-processing software from OnlineShopping.com, then a contract of sale had been established between the former and the latter. The provider or the seller, in this case, is liable to satisfy all the terms of the contract for delivering a satisfactory product to the consumer. However, it is observed that Andrew started experiencing problems within a few hours of using the software. There were problems including frequent crashing down of the programme, no option for autosave and inability to retrieve lost work. The consumer had to start afresh whenever the programme crashed. While purchasing the product Andrews had noticed on the seller’s website that the software was regarded as crash-resistive and highly durable. Therefore, the seller had provided a defective product to the consumer despite stating the fact that the product will be effective.
Under Consumer Rights Act 2015 there are certain statutory rights, violation of these rights can result in legal consequences. The statutory rights state that – products or services must match the description provided by the seller to the buyer, products or services must be of satisfactory quality and fit for specific applications and services are needed to be delivered with ‘reasonable skills and care’[2]. OnlineShopping.com in the case of Andrews had failed to offer a product that match the description they had provided on their website. Therefore, the first statutory right is getting violated. Andrews can raise a contractual claim depending on the fact that the product delivered by the provider did not match the description. Product or service description falls under the elements of a contract of sale made between the buyer and the seller either verbally or in a written format.
It can also be observed from the case study that the Terms and Conditions set up by OnlineShopping.com are enforceable. This is because Andrews was not able to view the particular Terms and Conditions and relied on the assurance of the seller for purchasing the software. Andrews is allowed to raise a claim since as per Section 5 of the Limitation Act 1980, the limitation period for raising the claim still exists. The limitation period is six years starting from the date from which the causes have occurred[3]. Consumer Rights Act 2015 allows customers to request for repair, part-refund or replacement in case any digital content is faulty[4]. The software also falls under digital content that can be replaced, refunded or repaired in case it is defective. The particular act states that any digital content needs to be of effective quality, match descriptions and serve the purpose of the consumer. Considering all these facts Andrews is allowed to ask for a refund or replacement of the software from OnlineShopping.com. If the company still denies doing so by declaring that agreement to their Terms and Conditions has left no choice for Andrews then he can raise claims on the grounds of Unfair Contract Terms Act 1977 and Consumer Rights Act 2015. Some other remedies which Andrews can consider include – consulting related trade associations, seeking the help of alternative dispute resolution or ADR scheme and taking the case to small claim courts.
Analysis of the validity of the Terms and Conditions and identification of remedies
It can be observed from the case study that during the purchase Andrews was not able to view and read the Terms and Conditions. The link to the Terms and Conditions webpage did not work properly and as a result, the consumer did not get the opportunity to go through them properly. The consumer in this case needed the software urgently and therefore agreed and bought the software. After using it for some time the consumer started facing problems that are in contradiction with the claims made by OnlineShopping.com.
According to Consumer Rights Act 2015 and Unfair Contract Terms Act 1977, certain standards must be followed for setting up Terms and Conditions by traders or sellers. It is essential to provide a clear and working link of the Terms and Conditions page to the consumers. The text explaining the terms and conditions need to be simple, clear and easy to read[5]. Terms in contracts that restrict or prevent consumers from maintaining their statutory rights and attaining remedies are regarded as unfair terms. Unfair terms put consumers or users at a disadvantage resulting in a ‘significant imbalance’[6]. Such unfair terms do not legally bind a consumer and the latter has the right to challenge the terms of the contract. Comparing the case study and the statements made in the acts inferences can be drawn that the Terms and Conditions set by OnlineShopping.com are not valid. Firstly, Andrews was not able to view and read the Terms and Conditions as the link was working. This violated the principles of the Consumer Rights Act 2015. The Terms and Conditions are not clear and transparent. The Consumer Rights Act 2015 allows consumers to make claims against the seller or retailer if the digital download is faulty or defective. Initially, a consumer can request replacement or repair. If the retailer refuses to replace or repair then a refund or deduction can be claimed[7].
Andrews had already claimed a refund to which the retailer had refused. They claimed that they are not liable for any return or refund as per a disclosure included in the Terms and Conditions. If such terms existed in the Terms and Conditions of OnlineShopping.com, then those can be regarded as unfair terms. This is because it is putting Andrews at a disadvantage. Concerning remedies Andrews need to ask the retailer to make arrangements to either replace or repair the software. The user can ask for a reduction in the price he had paid while purchasing the product. Andrews can also take help from the associated trade associations and identify the solutions that are available to the former. As a last resort, the consumer can consider assistance from small claim courts. This can prove to be time-consuming for the individual. Therefore, Andrews can negotiate and come up with a mutual consideration with the retailer[8]. The mutual consideration may include a repair or replacement opportunity instead of a refund or return.
Analysis of the validity of the Conditions of Use and identification of remedies
In the case study, it is noticed that while purchasing the software Andrew saw a pop-up stating that there are certain Conditions of Use concerning the purchase and downloading of the digital content. However, Andrews ignored the pop-up and continued with the purchasing process. The Conditions of Use included a term which stated that consumers on making any order will receive a weekly magazine subscription amounting to £9.99. The subscription period is 1 year. The information in the case study has not mentioned whether the cooling-off period is also included in the Conditions of Use. When Andrews contacted the retailer then only they informed that the former could have cancelled the subscription within seven days. Since he has failed to do so thus the subscription will continue for a year as per the term stated in the Conditions of Use. The validity of the Conditions of Use stated by OnlineShopping.com can be criticised as per the principles of Consumer Contracts Regulations 2013[9]. According to these regulations, traders or sellers are required to provide information about all associated charges in the context of the purchase in a transparent manner. Firstly, Andrews was not aware that certain charges would be mentioned in the terms included in the Conditions of Use. Due to this he was not at all aware of the scenario and ended up subscribing to the weekly magazine. Secondly, it can be inferred from the unawareness of Andrews that he had not received any notification about the subscription instantly after the purchase. Monetary deductions made the user aware of the existence of the subscription. The buyer also did not have any idea about the cooling-off period. From this fact it can be deduced that he had not received any notification or reminder from the subscription provider. This is in violation of the Consumer Contracts Regulations 2013. The notice must be provided to the consumer or buyer regarding how to cancel the contract[10]. In this case, the retailer had not provided any notice to Andrews about the seven days based cancellation policy. From these aspects, it can be stated that the Conditions of Use established by the online retailer is not valid. Andrews is allowed to raise questions depending on the conduct and behaviour of the retailer.
There are certain remedies that Andrews can consider for discontinuing the subscription. He needs to carefully identify the cancellations policies followed by the retailer. If he tries to stop the payment then he may become liable for missed payments. The cancellation policies offered by the retailer can be followed by the user to end the unwanted magazine subscription. In case there is no option for Andrews to cancel the subscription then he can take the help of Trading Standards. Already the Terms and Conditions set by OnlineShopping.com are unfair to a certain extent. The advice provided by the Trading Standards can help in identifying better ways of stopping the subscription and deduction of unwanted charges[11]. At first, Andrews should emphasize the cancellation rights and policies offered by the retailer. If positive outcomes are not observed then he can seek support from the trade or complaint body with which the seller is associated. Lack of awareness on the part of the consumers often leads to subscription traps like the one faced by Andrews. Effective negotiations between the two parties can result in quick resolving of the issues and damages caused.
Conclusion
The assignment has concentrated on a detailed evaluation of the scenarios faced by Andrews while purchasing text-processing software. The evaluations resulted in the formulation of some suitable remedies or recommendations that Andrews can follow to deal with his level of dissatisfaction and losses. The buyer has faced losses due to a breach of contract of sale by the online retailer. From the evaluation of the scenarios, it is seen that lack of clarity in product descriptions, absence of transparency in display of Terms and Conditions and inclusion of unfair terms in the contract are violations of the principles of Consumer Rights Act 2015, Unfair Contract Terms Act 1977 and Consumer Contracts Regulations 2013. Not only the retailer has failed to create awareness about the subscription charges but also it did not maintain a clear display of the Terms and Conditions. The product delivered failed to meet the description provided on the website which in turn is associated with deceiving the consumers. Andrews have certain options which he can use for taking legal actions or attaining appropriate compensations. Negotiations with the seller party, consulting and obtaining advice from the associated trading body and going to small claim courts are some of the solutions recommended for Andrews. Out of all these alternatives negotiations have been identified to be time-effective.
References
Citizensadvice.org.uk, ‘Problem With An App, Software Or Download’ (Citizensadvice.org.uk, 2021) <https://www.citizensadvice.org.uk/consumer/phone-internet-downloads-or-tv/problem-with-an-app-software-or-download/> accessed 9 November 2021
GOV.UK, ‘How To Write Fair Contracts: Information For Businesses’ (GOV.UK, 2016) <https://www.gov.uk/guidance/how-to-write-fair-contracts> accessed 9 November 2021
Hants.gov.uk, ‘Supply Of Services – Your Consumer Rights’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/servicesrights> accessed 9 November 2021
Hants.gov.uk, ‘Unfair Terms In Consumer Contracts And Notices’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/unfairtermsconsumer> accessed 9 November 2021
Harder, Sirko. “Negotiating Damages in English Contract Law.” FIU L. Rev. 14 (2020): 45.
ISSA, MUSTAFA RASHID. “The compensation of breach of online contract between theory and implementation in Common Law.”
Lexisnexis, ‘Contractual Breach Damages And Remedies—Overview’ (Lexisnexis.com, 2021) <https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview> accessed 9 November 2021
Netlawman.co.uk, ‘How To Bind Your Customers To Your Terms & Conditions’ (Netlawman.co.uk, 2020) <https://www.netlawman.co.uk/ia/making-your-terms-and-conditions-stick> accessed 9 November 2021
Tradingstandards.uk, ‘Citizens Advice Reveals Consumers Spend An Average Of £160 On Unwanted Subscriptions During National Consumer Week’ (Tradingstandards.uk, 2017) <https://www.tradingstandards.uk/news-policy/news-room/2017/citizens-advice-reveals-consumers-spend-an-average-of-160-on-unwanted-subscriptions-during-national-consumer-week> accessed 9 November 2021
which.co.uk, ‘Can I Get A Refund On A Digital Download?’ (Which?, 2021) <https://www.which.co.uk/consumer-rights/advice/can-i-get-a-refund-on-a-digital-download-aRtaE3n02nm8> accessed 9 November 2021
which.co.uk, ‘Consumer Contracts Regulations’ (Which?, 2021) <https://www.which.co.uk/consumer-rights/regulation/consumer-contracts-regulations-ajWHC8m21cAk> accessed 9 November 2021
[1] Hants.gov.uk, ‘Supply Of Services – Your Consumer Rights’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/servicesrights> accessed 9 November 2021
[2] GOV.UK, ‘How To Write Fair Contracts: Information For Businesses’ (GOV.UK, 2016) <https://www.gov.uk/guidance/how-to-write-fair-contracts> accessed 9 November 2021
[3] Lexisnexis, ‘Contractual Breach Damages And Remedies—Overview’ (Lexisnexis.com, 2021) <https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview> accessed 9 November 2021
[4] Citizensadvice.org.uk, ‘Problem With An App, Software Or Download’ (Citizensadvice.org.uk, 2021) <https://www.citizensadvice.org.uk/consumer/phone-internet-downloads-or-tv/problem-with-an-app-software-or-download/> accessed 9 November 2021
[5] Netlawman.co.uk, ‘How To Bind Your Customers To Your Terms & Conditions’ (Netlawman.co.uk, 2020) <https://www.netlawman.co.uk/ia/making-your-terms-and-conditions-stick> accessed 9 November 2021
[6] Hants.gov.uk, ‘Unfair Terms In Consumer Contracts And Notices’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/unfairtermsconsumer> accessed 9 November 2021
[7] which.co.uk, ‘Can I Get A Refund On A Digital Download?’ (Which?, 2021) <https://www.which.co.uk/consumer-rights/advice/can-i-get-a-refund-on-a-digital-download-aRtaE3n02nm8> accessed 9 November 2021
[8] Harder, Sirko. “Negotiating Damages in English Contract Law.” FIU L. Rev. 14 (2020): 45.
[9] which.co.uk, ‘Consumer Contracts Regulations’ (Which?, 2021) <https://www.which.co.uk/consumer-rights/regulation/consumer-contracts-regulations-ajWHC8m21cAk> accessed 9 November 2021
[10] ISSA, MUSTAFA RASHID. “The compensation of breach of online contract between theory and implementation in Common Law.”
[11] Tradingstandards.uk, ‘Citizens Advice Reveals Consumers Spend An Average Of £160 On Unwanted Subscriptions During National Consumer Week’ (Tradingstandards.uk, 2017) <https://www.tradingstandards.uk/news-policy/news-room/2017/citizens-advice-reveals-consumers-spend-an-average-of-160-on-unwanted-subscriptions-during-national-consumer-week> accessed 9 November 2021
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