COULD A REVIEW HELP MY BUSINESS?
Whether your business is business to business or business to consumer, and whether you supply goods or services your Terms & Conditions are a fundamental part of the Contract you make with your customer/client.
Some businesses don’t want to publish their T’s & C’s online. Reasons could be that they don’t want to publish prices or fees. There are ways around that.
So what happens if you don’t publish your Terms & Conditions online but send them by email or send hard copies to be signed and they aren’t signed or acknowledged, are they binding?
Maybe not.
THE MOVECO CASE
In 2019 I acted for a busy working single mother, moving house. The Removals Company I will call Moveco. Moveco did not post their Terms & Conditions on their website. This relates to a successful claim by my client for loss which Moveco tried to avoid.
A protective Review would have helped them.
The first thing a Review would have told them was that Their T’s & C’s were out of date having been drawn in 2014 so before the Consumer Rights Act 2015 and this was a consumer contract. You cannot circumvent the Act meaning a lot of their terms didn’t apply no matter what they said.
The Terms were attached to an email sent to my client at the beginning.
An acceptance form was also emailed to my client and it said that attention was drawn to claims for loss or damage on the separately attached Terms.
Those provided that unless you notified Moveco of any goods of value their Standard Liability was limited to £40 per item lost or damaged. Claims were to be raised within 7 days of the move or else the right to claim was lost. There was provision to notify an increase of the Standard Liability and a provision that said “I have read and understand the terms and conditions” and asked for a tick in a box to be sent back.
My client never got around to signing ,or increasing the Standard Liability. But she paid a deposit and the move took place.
If you have moved and if you are busy trying to work, be it as a parent, doing the school run and unpack you will know it takes time to unpack boxes and especially where, as was the case here, the removers placed many of them in the wrong rooms.
Before the 7 days my client told Moveco about damaged furniture and after the 7 days some lost items that she only discovered when she finished the unpacking. Value of claim supported by invoices and receipts around the £10,000.
Moveco fell back on the Terms. They said my client was too late as she was outside the 7 days and even had she been inside the 7 days her total claim would only be £40 per item not her loss. That would have been about £400 only not £10,000.
My client argued that as she didn’t sign anything she wasn’t bound by either the 7 days or the £40 but got nowhere.
On non-signing point, save for contracts relating to real estate, a contract can be formed in any manner at all. Jeffrey Ross Blue v Michael Wallace Ashely [2017] EWHC. The 7 days point failed the reasonableness test of the Consumer Credit Act in the particular circumstances.
On the face of it my client was bound by the Terms & Conditions.
It is not all good news for Moveco. Their Terms were 2014 and not compliant with the Consumer Rights legislation or Regulations.
Any conditions seeking to restrict my clients Rights are invalid (S 57.) The services failed to meet the test of reasonable skill and care, could not restrict my clients right to pursue remedies or claim compensation and to get a reasonable service.
Saint Cobain Building Distribution Ltd v Hillmead Joinery Swindon Ltd 2015 EWHC held that any terms to exclude liability including statutory rights were unreasonable and so failed.
Hamad M Aldrees & Partners v Rotex Europe Limited 2019 EWHC was on the point. Despite the fact that the Defendant had provided its Terms & Conditions by email and indeed referred to them in the ongoing emails from time to time and despite the fact that a contract had formed, because they weren’t attached on the website and because they weren’t attached to every email sent, as they hadn’t been acknowledged, they did not form part of the contract. Bad news for Rotex Europe.
My client got compensated by Moveco.
A Review would have highlighted potential risks for Moveco and might have avoided these problems for them and the cost.
Alexander Business & Law Solutions are members of Laurel Leaf Networking.
