When is distance selling not distance selling?

When is distance selling not distance selling?

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Sterillium

Original Poster:

22,226 posts

224 months

Sunday 25th October 2020
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Purely out of boredom idle curiosity, this is text from a car dealer's website:

"XXXXXX does not operate an organised distance selling regime, as all cars are available for test drive and viewing at our purpose built showroom in Bawtry. In exceptional circumstances a customer can arrange to have a car delivered without visiting us, but this would not be our normal terms of business and distance selling regulations would not apply."

Can distance selling regulations be nullified like this?

Edited by Sterillium on Sunday 25th October 19:24

loskie

5,143 posts

119 months

Sunday 25th October 2020
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no they cannot, a contract cannot circumvent consumer rights

buyer&seller

768 posts

177 months

Sunday 25th October 2020
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I had this written on our website, ran it past our specialist motor trade lawyer who confirmed it's perfectly acceptable. On the few occasions we did deliver a car we explained it to the buyer got a disclaimer signed and kept it with the deal file.

catman

2,490 posts

174 months

Sunday 25th October 2020
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A buyer can't be compelled to waive their rights, nor can a Dealer decide that the law doesn't apply to them.

anonymous-user

53 months

Sunday 25th October 2020
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[quote=buyer&seller]I had this written on our website, ran it past our specialist motor trade lawyer who confirmed it's perfectly acceptable. On the few occasions we did deliver a car we explained it to the buyer got a disclaimer signed and kept it with the deal file.
[/quote]

Well it would have to be challenged in court, but there are loads of unfair contract terms that ''It causes a significant imbalance between the rights of the trader and consumer to the detriment of the consumer.'' which one like the op posted clearly does.

buyer&seller

768 posts

177 months

Sunday 25th October 2020
quotequote all
The Spruce Goose said:
Well it would have to be challenged in court, but there are loads of unfair contract terms that ''It causes a significant imbalance between the rights of the trader and consumer to the detriment of the consumer.'' which one like the op posted clearly does.
As I mentioned, it was run by a specialist lawyer, I'll listen to him rather than some bloke on a forum, thanks.

anonymous-user

53 months

Sunday 25th October 2020
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[quote=buyer&seller]

As I mentioned, it was run by a specialist lawyer, I'll listen to him rather than some bloke on a forum, thanks.

[/quote]

Consumer laws are there for all to see, and pretty clear as well.

At the end of the day a consumer should always go with a company that doesn't try to circumnavigate statutory legislation.

buyer&seller

768 posts

177 months

Sunday 25th October 2020
quotequote all
The Spruce Goose said:
Consumer laws are there for all to see, and pretty clear as well.

At the end of the day a consumer should always go with a company that doesn't try to circumnavigate statutory legislation.
Look at No 1 on the list below, like I said I'll listen to the experts not some bloke on the internet, if it's so clear why didn't you see it and read it?

Exemptions to the Regulations
There are some exemptions. The Regulations do not apply to:

one-off distance sales made in response to a customer request (but not if you organise your business to regularly deal with such requests)
sales of financial services (these are covered by separate regulations, including the Financial Services Distance Marketing Regulations)
sales of land or buildings, including lease agreements for three years or more
sales using vending machines or automated commercial premises, and public payphones
sales at auction (including online auctions)

anonymous-user

53 months

Sunday 25th October 2020
quotequote all
[quote=buyer&seller]

Look at No 1 on the list below, like I said I'll listen to the experts not some bloke on the internet, if it's so clear why didn't you see it and read it?

Exemptions to the Regulations
There are some exemptions. The Regulations do not apply to:

one-off distance sales made in response to a customer request (but not if you organise your business to regularly deal with such requests)
sales of financial services (these are covered by separate regulations, including the Financial Services Distance Marketing Regulations)
sales of land or buildings, including lease agreements for three years or more
sales using vending machines or automated commercial premises, and public payphones
sales at auction (including online auctions)
[/quote]

how many do you sell by distance?

Jasandjules

69,825 posts

228 months

Sunday 25th October 2020
quotequote all
[quote=buyer&seller]I had this written on our website, ran it past our specialist motor trade lawyer who confirmed it's perfectly acceptable. On the few occasions we did deliver a car we explained it to the buyer got a disclaimer signed and kept it with the deal file.
[/quote]

Um, well, ok then.. I am not going to say said lawyer was wrong but...........

buyer&seller

768 posts

177 months

Sunday 25th October 2020
quotequote all
Jasandjules said:
Um, well, ok then.. I am not going to say said lawyer was wrong but...........
See above.

anonymous-user

53 months

Sunday 25th October 2020
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[quote=buyer&seller]

See above.

[/quote]

As you put it is purely for one offs. Say you sold more than a one off, then you would be in breach of the regulation.

catman

2,490 posts

174 months

Sunday 25th October 2020
quotequote all
Surely, any distance sale would be at the customer's request? At what point does it cease to be a one-off sale?

buyer&seller

768 posts

177 months

Sunday 25th October 2020
quotequote all
The Spruce Goose said:
As you put it is purely for one offs. Say you sold more than a one off, then you would be in breach of the regulation.
Usually when you're in a hole it's best to stop digging.

It looks pretty plain to me but you do your own research.

Mojooo

12,668 posts

179 months

Sunday 25th October 2020
quotequote all
Sterillium said:
Purely out of boredom idle curiosity, this is text from a car dealer's website:

"XXXXXX does not operate an organised distance selling regime, as all cars are available for test drive and viewing at our purpose built showroom in Bawtry. In exceptional circumstances a customer can arrange to have a car delivered without visiting us, but this would not be our normal terms of business and distance selling regulations would not apply."

Can distance selling regulations be nullified like this?

Edited by Sterillium on Sunday 25th October 19:24
Firstly - can a consumer buy a car without ever visiting the trader? Yes. Therefore it is a distance contract.

Secondly - do the distance selling laws apply? Well they apply to businesses that have an organised distance selling regime as they say. What that means is that distance selling rules won't apply if for example it was just a one off and they don't normally sell by distance means.

However, you can see the slight problem here can't you? They quite clearly DO sell by distance and are set up to do so and have obviously thought about it.

The issue is not how many you sell per se but whether you are set up to take distance orders.

So I would suggest distance selling rules could apply. They could easily get around it by not forming the contract until delivery but obviously they risk taking a car the consumer doesn't want.

If it went to court, a court may want to know how many cars have been sold in that way if trying to determine whether an organised distance selling scheme is in place

IMO by putting up that disclaimer its an indication they probably do sell cars with some regularity by distance means.

That all said, if you are concerned I would avoid it.

anonymous-user

53 months

Sunday 25th October 2020
quotequote all
[quote=buyer&seller]

Usually when you're in a hole it's best to stop digging.

It looks pretty plain to me but you do your own research.
[/quote]

no hole, it makes no difference what you business does.

Anyway how many sales do you do as one offs?

fooman

192 posts

63 months

Sunday 25th October 2020
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Does it become a distance sale if say a customer pays for a cafunseen and arranges collection? Or does it rely on the seller arranging delivery?

anonymous-user

53 months

Sunday 25th October 2020
quotequote all
fooman said:
Does it become a distance sale if say a customer pays for a cafunseen and arranges collection? Or does it rely on the seller arranging delivery?
“Where a vehicle sale is concluded at a distance, the accredited business will make clear your right to cancel within 14 days.”

if they don't display cancellation terms you automatically have a year to cancel.

Mojooo

12,668 posts

179 months

Sunday 25th October 2020
quotequote all
fooman said:
Does it become a distance sale if say a customer pays for a cafunseen and arranges collection? Or does it rely on the seller arranging delivery?
If there is no face to face contact and there is a contract formed for a purchase then its a distance contract.

How the goods are delivered is irrelevant.


anonymous-user

53 months

Monday 26th October 2020
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The advice given to buyer & seller might or might not be correct, dependent on whether his or her business has an organised distance selling service. The relevant Regulations (which by the way have not been called the Distance Selling Regulations since 2013) do not refer to "one offs". The question will always be one of fact: has the business made an ad hoc sale to a distant customer, or is the business configured for distance sales. In general, a disclaimer such as that referred to by the OP tends to send alarm signals, as a genuine non distance selling business that makes an occasional sale to a distant customer has no need for such a statement.. The bit of paper that buyer & seller has customers sign is of no value if the business is in fact an organised distance selling service, and irrelevant if it is not.