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Selling with Confidence

 

 

 

 

Knowing the law is on your side can help you to trade confidently, especially if a dispute should arise. At Buy with Confidence, we know that Trading Standards Regulations are just one of a range of laws which businesses are expected to be aware of and comply with, and we appreciate how time consuming it can be to keep up with changes when you are busy with other tasks. None the less, taking the time now to ensure your business is compliant with the law is vital to prevent the risk of future losses or even prosecution.

Here are a few tips from Buy with Confidence, based on our experience of meeting with many businesses, which we hope may help you avoid some of the most commonly overlooked rules. If you decide to apply for membership, your administering authority will be able to give you guidance on these issues. For a faster application process you may wish to read through this information in advance and make any necessary changes to your working practices.Please note that some of these laws create criminal offences, which means that prosecution can result if they are not complied with. This guidance provides a brief overview of selected issues only and should not be relied upon as a complete or definitive statement of the law. For detailed or specific guidance please contact us. The laws referred to below can all be read in full at www.opsi.gov.uk 
BWC Top Tips:

1. Disclose your identity

The law requires you to make it clear in communications with your customers and suppliers who they are actually dealing with, and how to find you. This means it must be clear whether you are trading as a limited company, and if not, what the names of the proprietor or partners are and where they may be contacted.

Limited Companies

Limited Companues must give their registered company name, number, registered office address and place of registration on all business letters, order forms and websites. Electronic documents are subject to the same rules. Other types of business document are required to show the Company's registered name.

Sole Traders and Partnerships

Sole traders and partnerships are required to provide specific information if they trade under a business name. The disclosure requirements may not apply if the proprietor trades under their own name, without alterations or additional words (for example, 'Fred Smith').

Letters, invoices, receipts and demands, including electronic versions must show the proprietor's name and are alos required to give an address at which documents can be served effectively. In the case of partnerships, all of the partner's names must be given (however, if there are more than 20 partners, special rules will apply). The required name and address information must also be displayed prominently at any place of business where the customers or suppliers may visit.

The Law

Until October 2009, the requirements for sole traders and partnerships to disclose their name and address came from the Business Names Act 1985. The Companies Act 2006 came into force on the 1st October 2009 and contains provisions which replace this part of the Business Names Act. The rules relating to limited companies can be found in the Companies (Trading Disclosures) Regulations 2008.

Further information and guidance material is available from The Department for Business Innovation and Skills, and Companies House.

2. Use Fair Contract Terms

Depending on the nature of your business, you may not need to use a standard set of terms and conditions. If your businesses does have contracts with small print, there is a legal requirement that the agreement is fair. This is especially important in contacts with consumers, who get more protection than businesses from the effects of unfair terms.
For a contract to be fair, it should be easy to read - which means the print should not be too small or faint. It should also use language which is not too complicated. The terms themselves must not attempt to take away the rights of consumers - these apply automatically and cannot be written out. The terms should give balanced rights to both parties, and should not contradict the pre-sales information given to the customer. If your consumer contract contains unfair terms, it will breach the Unfair Terms in Consumer Contracts Regulations 1999. Additionally, the unfair term will not be binding on the customer, even if they have signed the agreement. Borrowing a set of standard terms from a similar business, or asking a solicitor to draft terms, is no guarantee that they will be fair. If you do ask a lawyer to draw up or review your terms, it will be important to draw their attention to the Unfair Terms in Consumer Contracts Regulations, to make sure they have them in mind when working.

3. Ensure your marketing is truthful and up-to-date - including membership claims and logos

Anything you tell your potential customers to encourage them to buy from you should be true and not misleading. This includes being transparent about pricing (including taxes), and making sure you have removed old membership logos when you leave an organisation. Under laws which came into force in 2008, you can be asked to prove that an advertising claim is true, and you can be found to breach Regulations by failing to disclose to customers the full and accurate information they need to make a buying decision. More information on the Consumer Protection from Unfair Trading Regulations 2008 can be obtained from the Office of Fair Trading. Further guidance is also provided by the European Commission.

4. Give your customers the correct cancellation rights

Many of the contracts made with consumers must by law contain specific cancellation rights. Some of the key areas to look out for include the following:

4.1. Contracts made at a customer's home.

These are legally cancellable and a specific notice of cancellation rights, along with a cancellation form must be provided to customers, even if you don't have a written contract (Buy With Confidence can provide guidance if required). Please note that this applies even if your visit to the customer's house was at their request.
The law which introduced these requirements in 2009 is the Cancellation of Contracts Made in a Consumer's Home or Place of Work etc Regulations 2008. Failing to give the required cancellation rights and notice is a criminal offence and means the customer may not have to pay for the work which has been done.
More information is available on these regulations from the Department for Business Innovation and Skills.

4.2. Contracts made without face-to-face discussions (Distance Selling).

If your business is organised to take orders or make agreements by telephone, internet, mail-order or another mechanism where a deal is struck before/without meeting face-to-face, your customers will be entitled to change their mind and must be informed of their right to cancel. In general, customers will have seven days to cancel goods orders (starting the day after the goods are delivered). In the case of services, the seven days starts to run when the order is agreed. These rules come from the Distance Selling Regulations 2000. Further information and guidance can be obtained from The Office of Fair Trading.

4.3. Credit Agreements (Regulated Consumer Credit).

Some types of credit agreements are cancellable by law. Unless your business is a financial service provider regulated by the Financial Services Authority, it is likely that the credit agreements you use are provided by a different company from your own. There are different cancellation rules depending on the type of credit being arranged -terms and conditions of the credit agreement must explain the cancellation rights clearly and you should be able to check these for more information. For some types of cancellable credit agreement, a seven day cancellation period will apply. Other types of cancellable credit require a reminder of cancellation rights to be sent by post, and must provide a 5 day cancellation period following the reminder notice.
Important general points to remember include the following:
  • Until the moment the credit agreement is properly completed and signed by both parties, the consumer is entitled to withdraw from the agreement.
  • If a contract is planned to be financed by a credit agreement, but the credit is not finalised for any reason then it is unlikely the consumer will have to buy the goods or services, even if they have simply changed their mind. In such circumstances, it would not be lawful to retain a customer's deposit (or a sum exceeding £5).
  • Where a consumer exercises their right to cancel a credit agreement, it will usually also have the effect of cancelling the main agreement to buy goods or services as well.
There are some exceptions to the rules and if you require advice it is recommended that you contact us. Further information and guidance is available from the Office of Fair Trading.

5. Know your Obligations

It is almost certain that from time to time there will be a problem with the goods or services which a customer has purchased from your business. Knowing at the outset the likely extent of your future obligations to offer assistance with faults can help you plan ahead financially. In addition, when a problem does arise, being certain of the extent of your responsibilities can help both parties reach a satisfactory conclusion in the shortest possible time.
Important provisions for most retailers and service providers can be found in The Sale of Goods Act 1979, The Supply of Goods and Services Act 1982, and the Sale and Supply of Goods to Consumers Regulations 2002. These laws create civil law rights and responsibilities which govern the agreements between businesses and consumers and this means that customers will have the right to take legal action (such as a 'small claims' action) if their rights are not observed.
Some important aspects to be aware of include the following (None of these obligations can be written out or avoided by use of contract terms):
  • If a consumer has bought goods or services from you, the law provides that you have responsibilities for up to six years from purchase even if no guarantee is provided, or the guarantee has expired (the seller is not responsible for ordinary 'wear & tear' however).
  • Even if there is a manufacturer's guarantee, the seller is still responsible to the buyer in law.
  • If a business changes its name, or stops trading, the proprietor may still be responsible for the goods they have sold, or the work they have supplied (this does not apply to limited companies which have been wound up however).
Business guidance regarding the sale and supply of goods is available from the Department for Business Innovation and Skills website:

Additionally, businesses may wish to contact us in the event of specific questions.

N.B. Buy with Confidence members can seek advice and assistance from their administering authority in the event of a consumer dispute or on any of the issues referred to above.

 
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