The Law Of Shopping
[as it applies in England]

How the contract is made

Before we go shopping, lets take a look at the general case of contract law - it will help to bring the rest of this article into focus. To form a contract, two things must happen. Someone makes an offer, and someone else must accept it. Both parties must benefit from the contract and the contract isn't enforceable if it involves either party doing anything illegal. Furthermore, the Unfair Contract Terms Act 1977 (UCTA) will apply - a contract that is unfair on either party is invalid. The most common contracts involve one person doing some work, in exchange for money or goods, or one person supplying some goods, in return for work or money. The value that the two parties gain from the contract should be roughly equitable - normally the fact that they initially agreed to the contract is held to be proof of this, but the UCTA is there in case one party was co-erced or duped into the contract.

When is the contract made - IMPORTANT

So at what point of a shop purchase is the contract made? This is an important question and it answers a popular shopping myth. When a retailer puts an item on the shelf with a price on it, this does not constitute an offer to sell (legally, its called an 'invitation to treat'). In fact, a shop doesn't have to sell you anything if they don't wish to, even if its on the shelf with a price. They can change their mind. They can't refuse to serve on discriminatory grounds of course, that would be illegal for other reasons, but for any goods-related reason they can. This is how it works; you pick an item off the shelf and take it the check out, and you are asked for some money. You offer the money - this is the offer to buy, and its the offer part of making a contract. If the cashier takes your money, that is the acceptance part and the contract has been made. From this point on, the SOGA applies.
You may have heard the popular story that if a shop accidentally put the wrong price on an item, the have to sell it for that price - absolutely wrong. They may choose to sell it at that price as a matter of goodwill, but that's another part of the story, and there's more about this further down this article.

What Rights does the SOGA give?

Well, goods supplied must be as described, and fit for purpose. If they are not, and you take them back to the retailer in a reasonable length of time you are entitled to a refund - although you may accept a replacement, alternative or credit note if you prefer. The standard questions raised are these;

How long is a reasonable time? Well, this isn't a specific period. One week is probably reasonable, two weeks is probably stretching the limit, but it does depend what you're buying - if its an ice cream then the reasonable time is probably about 2 or 3 minutes.

Do I have to accept a replacement if the shop has one in stock? No. You are entitled to a refund. Anything else you choose to accept is entirely at your discretion.

Do I have to produce a receipt to claim my rights? No. In fact the trader doesn't have to give you a receipt in the first place so it would be unfair to say that you had to produce one. However, it might not be unreasonable for the shop to want some proof of purchase, so look to see if you have a cheque stub, bank statement, credit card slip etc., and this should be sufficient. Other proofs are own-brand items, or price labels showing the name of the store. You'll probably find that many retailers try to insist on a receipt, they do not have the right to do this.

What isn't  'fit for purpose' or 'as described'?

A telephone supplied in a box. On the box its says its a green phone, but when you open it its a blue one.

An item of clothing with a tear, stain or that is misshapen.

Any item that doesn't work.

Even cheap things should work, although your expectations of quality and longevity should take into account the price you pay - a 200 piece tool set costing £3.99 cannot reasonably be expected to tackle heavy duty jobs.

Retailer's Goodwill - don't confuse this with your Rights.

Can I return something that's not faulty, for instance because I've changed my mind, or it doesn't look as good as I'd thought it would? Well, you probably can because most retailers make these kind of offers on a good will basis, because they believe it increases sales. However, in this instance you don't have any rights at all - not to an exchange, refund or credit note. Anything you are offered you should take and think yourself lucky.

What to do if the Shopkeeper Refuses a refund on faulty goods

Some retailers actually don't know the law, but much more likely they're just hoping you don't.
First, ask to see the manager or supervisor and tell them you are claiming your rights under the sale of goods act. 75% will give in at this point.
If you still don't get joy, phone, email or write in to the manager or the head office. Tell them your complaint, and that you want a refund in line with your rights under the Sale of Goods Act 1979 (and subsequent amendments). Also say that if they don't give a refund, you will pursue that matter in the small claims court. This should wrap up another 20% - you're left with the rare few who will resist this pressure.
Going to small claims isn't actually that hard, if you need to go this far, your first stop is the Citizens Advice Bureau.

Sometimes, the shopkeeper may say its not his problem and you should contact the manufacturer. This is wrong. You have a contract of sale with the shopkeeper. He has his own contract with his supplier, its up to him to claim for faults under his contract.

Buying from On-Line shops

On-line selling is effectively just a new form of mail-order and its covered by Distance Selling Regulations (DSR). This means that you have 7 days from receipt to decide if you wish to keep the goods or cancel the contract. The goods don't have to be faulty. If you cancel you are entitled to a refund of the cost of the goods plus delivery. The retailer will probably expect you to pay for return of the goods, but if he does expect this it must say so in the terms of sale. If course most people don't read terms of sale, they just hit the 'accept' button, but why not try reading them? For heavy items like kitchen appliances or furniture, it could end up being expensive if you have to return them at your own expense - you should always consider buying this type of item locally.

Buying from auction sites such as Ebay

If the seller is registered with Ebay as a business seller, then DSR applies. If they are a private seller then you can't cancel unless the goods are not as described.

Ebay's rules will also affect any contract, and they are notorious for constantly changing them, and this could present an additional difficulty since the rules that were in force at the time of any purchase would be the ones bound into the contract, but if they've changed since it could be tricky to establish.

SOGA and Goods bought in Sales

The SOGA applies to goods bought in sales just as it does to goods bought at any other time. You might think this is not the case given that you've probably seen this sign a few times;

These signs are completely invalid if an item is faulty, or not as described. You are entitled to a refund whether you bought the goods in a sale or not, and this is not affected by retailers putting signs up.
Of course, the store never have to take goods back that aren't faulty, since that's only ever an issue of their goodwill, so they can certainly refuse this on sale goods, or indeed on any goods.

Can retailers sell goods that they know are faulty?

Yes, but they should describe them as faulty, and importantly they must do this before you buy them, ie before the contract is made. If they tell you afterwards, this constitutes an attempt to add clauses to a contract after it has been agreed, and this is not allowed in contract law. If a shop tells you goods are faulty after you've paid, you can immediately ask for a refund. This does provide a route by which a retailer can avoid any returns on Sale Goods - by putting up a notice saying;

Now they've told you this, you are left with no avenue to return the goods. You don't often see this though, because it tends to reduce sales.

Attempts to add more rules after the contract is made.

There is one particular retail situation where the seller often tries to add a clause to contract after its agreed, and it concerns car washes. You pay to use the car wash at the till in the filling station. Then you drive around to the car wash entrance where a notice says

This sign is completely invalid - they didn't tell you about any risk until after you paid and they took your money, so if your car is damaged you can claim from the wash operator.
There is a general issue about what constitutes a clause added before the contract is made. Notices that are in clear view before you pay are probably effective at adding a clause. But the shop need to show that the sign was up at the time of purchase, and not put up afterwards. Also, they'd need to raise the issue with blind customers.
Clauses written on the back of a ticket are effective as long as the front of the ticket has a note telling you that conditions are on the reverse, otherwise you can successfully argue that you didn't ever think of looking on the back. Also, if the conditions are not clearly displayed before you pay, so that the first opportunity you have to see them is after you receive the ticket, then you can claim your refund within a reasonable time.

Can you evade the law by putting up notices?
Its pretty obvious, isn't it. Anyone can put up notices like these;

Neither sign means a jot. The law stands irrespective of any notices put up by members of the public. The reason I highlight this, is both the 'no return on sale goods' and 'owners risk of using car wash' notices are attempts to do just this - bypass the law with a notice.

Copyright Br0wn Box 2004.

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