When is distance selling not distance selling?

When is distance selling not distance selling?

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Discussion

anonymous-user

53 months

Tuesday 27th October 2020
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Mojooo said:
Yes, IF the legislation applies and the trader has not explained to the consumer their rights then the right to cancel keeps extending until the trader provides the rights (up to a period of a year).

in reality, if a consumer cancels and the trader refuses to accept it and the consumer is adamant the rules apply, then it would have to go to court.
Yet a specialised lawyer checked it out and it was all ok huh

anonymous-user

53 months

Tuesday 27th October 2020
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I think that lawyer might have been Dave from the pub.

anonymous-user

53 months

Tuesday 27th October 2020
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Is there any authority on what 'organised' amounts to? Would a couple of completed distance transactions with a similar 'system' or some form of rudimentary internal or external policy or pro forma contract suffice?

If denied by the business, how easy would it be for a consumer to prove there was organised distance selling going on?

anonymous-user

53 months

Tuesday 27th October 2020
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If (a very big if, in fact a really mahoosive if) I could ever be arsed, I might check whether anyone has ever litigated the meaning of organised distance selling to the High Court or above. I suspect that if the point is litigated at all that happens in small claims, which establish no authority. The disgruntled consumer could if suing see disclosure of the seller's records of sales made over, say, the last year or few. The difference between a system and a small number of ad hoc sales is a matter of fact and degree. Having your customers sign a disclaimer does rather trail the coat.

anonymous-user

53 months

Tuesday 27th October 2020
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A quick Bailii brings up a helpful/unhelpful case from the High Court in 2017...

"There is apparently no authority on the expression "organised distance sales scheme"

Linnet v Harding [2017] EWHC 1781 (TCC) p86

anonymous-user

53 months

Tuesday 27th October 2020
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That does not bear on the question of selling cars, as the very ropy argument there being addressed was that in nominating an adjudicator in a building dispute the RICS engaging in distance sales. The company director Mr Davies who appears in that case looks like he would fit in well in the PH legal barrack room.

anonymous-user

53 months

Tuesday 27th October 2020
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Also maybe some guidance here, p63-69.

https://www.bailii.org/eu/cases/EUECJ/2020/C63918_...

anonymous-user

53 months

Tuesday 27th October 2020
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Jasandjules said:
Breadvan72 said:
One thing that whamster-scamsters operating on the fringes of legality often fail to appreciate is that the law is quite good at spotting obvious dodges and wheezes. Arthur Daley is not a role model.

Edited by anonymous-user on Monday 26th October 14:59
Can you say Street v Mountford............
I always get Sweet v Mountford mixed up with Sweet v Parsley, even though one is about sham licenses to occupy premises and the other is about getting stoned.

buyer&seller

768 posts

177 months

Tuesday 27th October 2020
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To clear up some of the points that some here seem to be addressing at me.

A couple of people here who seem to know what they are talking about, one in particular stands out, have commented that it would be possible to show that a business is not an organised distance seller service given the right circumstances and have then later gone on to do a complete about face and say it's not the case, make your minds up.

It's largely academic now as we closed our business back in July as at our main source of stock, the auctions, we have not been able to view the cars we might buy and we weren't prepared to buy what we couldn't see, hear, feel and smell as we were very particular about what we sold, as we are reaching retirement age anyway this was the right time for us to finish. We kept a stock of 10/12 cars and sold about 6/8 a month, mainly all prepared and ready to drive away on the day of purchase from our premises. We did not do click and buy, offer delivery on our website/advert listings or any other such service, but on occasion if someone asked if we could deliver a car unseen we would consider it but only if the buyer seemed sensible, genuinely couldn't travel and accepted the terms being discussed on here. We would take a deposit with the balance to be paid on delivery once the buyer was happy with the car, so no different really from buying from our unit, just that we were now at their own property. The disclaimer we got signed was just a copy of the words written on our website to show they were aware of this.

As mentioned earlier there are a number of lawyers who specialise in the motor trade, Lawgistics is one but not the one we used, they are certainly not “Dave from the pub” as suggested by one wag (hilarious) and are suitably qualified, unlike most here, to give professional advice.

In my naïve (clearly not legally qualified) view these rules were made up to protect people from large internet sellers where the goods are clearly not available to be viewed, ours were but the buyers, for whatever reason, couldn't visit, we clearly got swept up into this legislation. We didn't want to be delivering cars as it took up time and expense which we wouldn't normally have wasted, plus being located in the centre of the country we had a huge catchment within an hours distance so there wasn't much need. In the 8 years we ran that business the amount of cars we delivered unseen could be counted on my fingers so we defiantly where not an “organised distance selling service”. Of course we offered people the usual back up with those cars and if a genuine issue was encountered we would put it right but the idea of selling a car to someone miles away who then drove to Poland (other countries and nationalities are available) and back over the weekend to show their family and then expected their money back as their partner didn't like the colour or something else equally ridiculous wasn't going to be entertained and I am damn sure no one here, well the one's with any sense, thinks that's right and proper either.

BertBert

18,954 posts

210 months

Tuesday 27th October 2020
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[quote=buyer&seller]To clear up some of the points that some here seem to be addressing at me.

[/quote]
Just to satisfy my curiosity, are you the business that the OP was posting about?
Bert

buyer&seller

768 posts

177 months

Tuesday 27th October 2020
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BertBert said:
Just to satisfy my curiosity, are you the business that the OP was posting about?
Bert
No, I don't know who the OP was referring to either as there's no name.

anonymous-user

53 months

Tuesday 27th October 2020
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Breadvan72 said:
That does not bear on the question of selling cars
Quite, however it was the only High Court case or above on Bailii that referenced it, useful if only to suggest there had not been any other cases to define it (as of 2017, at least).

anonymous-user

53 months

Wednesday 28th October 2020
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[quote=buyer&seller]...
A couple of people here who seem to know what they are talking about, one in particular stands out, have commented that it would be possible to show that a business is not an organised distance seller service given the right circumstances and have then later gone on to do a complete about face and say it's not the case, make your minds up.

...



[/quote]


If your trading practices were as dishonest as your attempt to misrepresent my comments, it is a good thing that you are no longer selling cars.

POORCARDEALER

8,523 posts

240 months

Wednesday 28th October 2020
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Fully understand retailers not wanting to participate in the scheme and modelling their business not to.


"Sell" man £150K Ferrari, Rolls, Maserati etc, he rags the arse off it, nails hookers in it, and on a whim returns it, legally.

Rinse and repeat.


You would think the lawyers that put the wording together, would have a clue if they advising businesses, no?

GTiWILL

778 posts

77 months

Wednesday 28th October 2020
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[quote=buyer&seller]We would take a deposit with the balance to be paid on delivery once the buyer was happy with the car.

[/quote]

Maybe some legal bods can answer this...

I was under the impression that a distance sale requires conclusion of the contract PRIOR to inspecting the goods. Would the fact that buyer&seller took the final balance AFTER the buyer inspected the goods mean the contract wasn’t concluded until then, and therefore not a distance sale?


Edited by GTiWILL on Wednesday 28th October 18:46

anonymous-user

53 months

Wednesday 28th October 2020
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That would be an off-premises sale, which is also covered by the relevant Regulations.

anonymous-user

53 months

Wednesday 28th October 2020
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POORCARDEALER said:
...

You would think the lawyers that put the wording together, would have a clue if they advising businesses, no?
On that basis, any lawyer who gives advice to any client on any subject must always be right. "Oh, you must be an infallible expert, because you have clients".

The disclaimer might trail the coat of a business that is trying to evade the rules. The disclaimer is not needed if the rules do not apply. It has no effect if the rules do apply.

Algarve

2,102 posts

80 months

Wednesday 28th October 2020
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buyer and seller said:
No, I don't know who the OP was referring to either as there's no name.
https://www.portlandautos.co.uk

anonymous-user

53 months

Wednesday 28th October 2020
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You might like to have a quick look at the forum posting rules.

Jasandjules

69,825 posts

228 months

Wednesday 28th October 2020
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POORCARDEALER said:
You would think the lawyers that put the wording together, would have a clue if they advising businesses, no?
Well, as a general rule I would say that a lawyer drafting those terms has been instructed to attempt to get around the relevant Regulations and there is a strong chance said drafter has advised his client that it may not hold water if legally challenged...................