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What are the pre-contractual 'information requirements' to follow when placing an item for sale?

Legislation requires that certain information must be provided to potential buyers before a contract is made. This is to ensure that consumers make an 'informed choice' before concluding a contract and to prevent disputes over the sale process and the nature of the items sold. You can comply by including the required information in, or clearly linked from, your item listings. In all cases, including sales by auction, you must declare the following information about your business alongside each item you sell:

  • the identity of your business (such as your trading name);
  • your business's telephone number;
  • the geographical address where your business is established and, if different, the address to where complaints can be sent. For example, a PO box address is not sufficient;
  • if you are acting on behalf of another trader, then the geographical address of that trader;
  • your VAT number, if you have one;
  • the fact that you are a business, if this is not already clear (for example, falsely claiming or creating the impression that you are not acting for purposes relating to your trade, business, craft or profession, or falsely representing oneself as a consumer is seen by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as an unfair commercial practice).

You must also include the following information about the products for sale and how they can be purchased:

  • a description of the items on offer;
  • the price, including all taxes (or, if the price cannot be calculated in advance, the manner in which it
  • will be calculated);
  • delivery costs;
  • for open-ended or subscription contracts, the total monthly costs (for example, monthly membership fees);
  • the duration of the contract and, if undetermined or automatically extended, how to terminate the contract and also, the minimum duration of the consumer's obligation under the contract;
  • arrangements for payment and delivery;
  • details of any complaints-handling policy, aftersales assistance and service, and any commercial guarantee. For example, a commercial guarantee may offer eight years' cover for defects with certain parts of an appliance for sale, which is above the legal minimum guarantee. (see section 4.13 of this guidance for further details);
  • details about the existence of the right to cancel, including details of how to cancel and relevant timeframes applicable;
  • where there is no right to cancel, or, where that right can be lost under certain circumstances, the details of such circumstances;
  • any requirement for the consumer to bear the return costs if they exercise their right to cancel;
  • a reminder of the consumer's legal right to expect goods that are in conformity with the contract, which is to say of satisfactory quality, fit for purpose and as described (see section 4.11 of this guidance for further details);
  • if relevant, information about any deposit or similar to be paid by the consumer;
  • information about any applicable code of conduct and alternative dispute resolution mechanism. For example, if you are part of a trade association or a 'good trader' scheme then this should be disclosed to the consumer;
  • information about the functionality and compatibility of any digital content, explaining any potential technical restrictions that may apply.

Please do not assume that by providing some of the above information during the sign-up process with a particular online platform, that the relevant information will automatically be made available in the required format to customers using the platform.

Furthermore, failure to provide the above information is a breach of the law with immediate consequences (for example, if you do not inform consumers of their right to cancel, this right is automatically extended to up to one calendar year). For further details, please see the Business Companion guides 'Consumer contracts: distance sales' and 'Consumer protection from unfair trading'.

Exemptions from the pre-contractual information

There are some exemptions to the application of these rules, which may be relevant in a certain number of limited circumstances. However, this guidance does not deal with such circumstances in detail due to their specialist nature. For more information on exemptions and when they apply, please see 'Consumer contracts: distance sales'.

Consumer cancellation rights

A consumer who has purchased your goods via an online platform has the right to cancel the contract and claim a refund without giving any reason or justification and without incurring any liability (unless exceptions apply). This right is provided because, in distance contracts, there is no opportunity to examine the goods before they are delivered. Furthermore, the consumer does not have to pay the costs of returning the goods unless you have informed them that they have to bear that cost. The right to withdrawal is 'fully harmonised', which means that the same rules apply in all the EU Member States.

The withdrawal period, in which the consumer can cancel the contract, is 14 calendar days in both the UK and Europe. The consumer's right to cancel the contract starts from the day after the moment the goods are in the physical possession of the consumer (or the last piece of the order in the case of multiple goods or goods consisting of multiple lots or pieces ordered).

Weekends and public holidays are included in the 14 days. However, the cancellation period expires at the end of the following working day if the end of the 14 days falls on one of those days.

Where such right to cancel exists (please see the statutory exceptions in section 3.4 of this guidance), you need to inform the consumer about this right and how they can go about exercising it.

If you provide the required cancellation information late (but within 12 months from the consumer entering the contract), the cooling-off period of 14 days starts when the consumer receives that information. If you do not provide the required cancellation information, the cancellation period ends at the end of 12 months after the day on which it would have ended if the information was provided according to the law.

To exercise the right to cancel, the consumer must notify you using a model cancellation form (if you have provided one) or by making any other clear statement of cancellation (whether or not in writing).

You can grant the consumer rights that go beyond what is legally required; however, your customer needs to receive what they are legally entitled to as a bare minimum, including a model form to withdraw from the contract in a durable medium (paper, email, DVD, etc but not a web page).

For more information about cancellation rights and information requirements, including the model cancellation form, see 'Consumer contracts: distance sales'.

What are the exemptions from cancellation rights?

In the following cases, the right to cancel does not apply:

  • medical products, supplied by a prescriber or healthcare professional, as part of the health service;
  • goods whose price depends on fluctuations in the financial markets (for example, value of a foreign currency) and for the supply of alcoholic beverages, whose price has been agreed at the time of the contract, but their delivery can only take place after 30 days;
  • goods made to the consumer's specification (but this does not include goods, such as cars or computers, where components or extras are chosen from a standard list);
  • personalised goods (for example, a tailor-made pair of shoes);
  • perishable goods or other goods, which are likely to expire rapidly (for example, fresh vegetables);
  • newspapers, periodicals and magazines, except subscription contracts, which can be cancelled;
  • items sold at a public auction where bidders are given the opportunity to attend in person;
  • contracts for accommodation, transport of goods, vehicle rental, catering or leisure services, if the contract is to be provided on a specific date or within a specific period.

In addition, the right to cancel can be lost in the following cases:

  • the consumer unseals certain goods after delivery, for which a seal is necessary for health protection or hygiene reasons (for example, cosmetic products or mattresses);
  • the consumer unseals audio or video recordings or computer software after delivery;
  • the goods become mixed inseparably with other goods after delivery because of their nature (for example, where the goods are a paint additive and the consumer has added it to a pot of paint);
  • the supply of digital content (not provided on tangible medium such as a DVD) if the performance begins with the consumer's express consent and acknowledgement of the loss of the right to cancel.

The right of withdrawal can never be excluded or limited because it is guaranteed by law. For further details please visit section 4.7 of this guidance.

Dispute resolution

Online platforms may sometimes have their own dispute resolution services to resolve issues between buyers and sellers. If not, or if the dispute is not successfully resolved by this means, court proceedings might be an option, but these could be costly and time-consuming.

To avoid the use of courts, alternative dispute resolution (ADR) can be used to settle disputes arising between traders and consumers based in the UK or abroad. This involves the use of an ADR body which is impartial and offers a variety of methods of resolving consumer disputes, such as mediation, conciliation or arbitration. To gain access to ADR, traders can join either a trade association which offers an alternative dispute resolution (ADR) scheme or an ADR body, although they do not have to do so.

Under the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, if you have exhausted your internal complaint procedure in relation to a complaint brought by a consumer, you must provide the consumer with the following information regarding ADR schemes on a durable medium:

the name and website address of an ADR entity that would deal with the complaint;

whether or not you intend to use ADR. However, if you are required by law or membership to a trade association to use ADR, then you must agree to do so;

The online marketplace may provide a specific facility for you to provide this information on the website platform. Where there is no specific place for the information, you should provide the information clearly where the consumer can find it – for example, in product listings or your seller page.

In addition to the above, an Online Dispute Resolution (ODR) Platform has been set up by the European Commission to facilitate the submission of complaints about products or services purchased online. The ODR platform allows complaints to be referred to ADR bodies, hence offering a single point of entry to consumers and traders seeking to resolve disputes without going to court. Whether or not you intend to use it, you as a trader are required to provide:

  • a link to the European ODR Platform on your website (ec.europa.eu/odr) – but you are not obliged to create a website if you do not have one;
  • your email address for consumers to contact you (a web form is not sufficient);
  • in addition, if you are committed to using an ADR process (as the result of a mandatory requirement, or through your trade association or other membership scheme), you must include the ODR link in any emails sent to the consumer offering goods or services and include information about the ODR platform in your general terms and conditions applicable to online sales.

For more information on ADR and ODR please see the Business Companion guide 'Alternative dispute resolution'.

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